State v. Lucas

Decision Date11 December 1976
Docket NumberNo. 48227,48227
Citation557 P.2d 1296,221 Kan. 88
PartiesSTATE of Kansas, Appellee, v. Gerald LUCAS, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. In an appeal by defendant from a jury verdict of guilty of aggravated robbery (K.S.A. 21-3427), the record is examined and it is held: The trial court did not err in (1) denying defendant's challenge of the information as defective, and (2) failing to instruct that intent was an essential element of the crime.

2. The holding in State v. Clingerman, 213 Kan. 525, 516 P.2d 1022, that the failure of the court to instruct on intent as an element of a crime was reversible error, is modified in the circumstances of this case as disclosed in the opinion.

Frank F. Eckdall, Kansas City, was on the brief for appellant.

Curt T. Schneider, Atty. Gen., Nick A. Tomasic, Dist. Atty., and Dennis L. Harris, Deputy Dist. Atty., Kansas City, were on the brief for appellee.

PER CURIAM:

This is a direct appeal by defendant from a jury verdict of guilty on one count of aggravated robbery (K.S.A. 21-3427).

On August 9, 1974, a Kansas City, Kansas, market was robbed. During the course of the robbery the culprits pointed a revolver at a store employee and relieved her of an undetermined amount of money and a cash register tray. Defendant was later apprehended riding in an automobile resembling the getaway car. Two handguns fitting the description of those used in the robbery were recovered from the glove compartment of the car. Defendant was arrested and taken to police headquarters where the store clerk identified him as one of the robbers from a line-up.

On September 21, 1974, after being advised of his constitutional rights and signing a waiver, defendant gave a handwritten statement in which he admitted participation in the holdup.

At trial, the state presented testimony of the store employees and police officers, weapons recovered from the automobile, and defendant's confession. Defendant was found guilty and sentenced to a term of not less than fifteen years nor more than life.

Defendant appeals, alleging the information was defective in that it did not charge a crime or allege the property taken was not his property, and that the court erred in failing to instruct that intent was an essential element of the crime.

The information charges that defendant:

'. . . (D)id unlawfully, feloniously and wilfully take property, to-wit: money from the presence of Bernice Jones and Eugene Marshal . . . contrary to K.S.A. 21-3427.'

The sufficiency of indictments and informations is now governed by the guidelines of K.S.A. 22-3201(2). This court has repeatedly held that an information which charges an offense in the language of the statute or its equivalent is sufficient. (State v. Barry, 216 Kan. 609, 619, 533 P.2d 1308; State v. Hill, 211 Kan. 287, 296, 507 P.2d 342; Carithers v. State, 207 Kan. 607, 608, 485 P.2d 1368; State v. Chuning, 199 Kan. 215, 219, 428 P.2d 843.) The exact statutory words need not be used in the information if the meaning is clear. (State v. Hart, 33 Kan. 218, 6 P. 288; State v. Hazen, 160 Kan. 733, 165 P.2d 234; 67 Am.Jur.2d, Robbery, § 33, p. 49; 77 C.J.S. Robbery § 34, pp. 472-73.)

Defendant first claims the information was fatally defective in that it failed to adequately and precisely describe the money alleged to have been taken. Defendant relies on a number of older cases where the court required a high degree of precision in the description of the money that was taken in a robbery. (State v. Tilney, 38 Kan. 714, 17 P. 606; State v. Ready, 44 Kan. 697, 26 P. 58; State v. Collins, 79 Kan. 411, 99 P. 817; State v. Ferron, 122 Kan. 845, 253 P. 402; State v. Ross, 152 Kan. 495, 105 P.2d 879.) The authority of these decisions has been considerably eroded by the modern rationale for pleading in criminal cases. K.S.A. 21-3426 states that robbery is the taking of 'property' from the person or presence of another. Modern cases support the view that the allegation the defendant took 'money' or 'U. S. Currency' sufficiently describes the nature and character of the property taken. (Gray v. Hand, 186 Kan. 668, 669, 352 P.2d 3; Kienlen v. United States, 379 F.2d 20 (10th Cir. 1967); 67 Am.Jur.2d, Robbery, § 42, p. 53.) In Gray, this court upheld an information which alleged that the defendant had taken "property, to-wit: One billfold and $1.00 in United States money . . .." (186 Kan. p. 669, 352 P.2d p. 4.)

Courts of other states have held that a description of property taken as 'U. S. Currency' or 'legal money and currency of the United States of America' is sufficient. (People v. Smith, 66 Ill.App.2d 257, 213 N.E.2d 135 (1966); Roberts v. State, 172 Tex.Cr.R. 500, 360 S.W.2d 883 (1961), cert. denied 371 U.S. 846, 83 S.Ct. 83, 9 L.Ed.2d 83.)

Defendant does not indicate he was misled or disadvantaged. A full preliminary examination was held and he was aware of the state's evidence. The record indicates no request by defendant for disclosure of the amount of money claimed by way of discovery and no request for a bill of particulars. We conclude the allegation of the information that defendant took 'property, to-wit: money' by robbery is sufficient and within the guidelines of K.S.A. 22-3201(2).

The ownership of property taken is not an element of the offense. Taking any property from the person or presence of another by threat of bodily harm is robbery. Neither the robbery statute, K.S.A. 21-3426, nor the statute defining aggravated robbery, K.S.A. 21-3427, requires the property be that 'of another.' In the instant case, the information charged defendant with taking money 'from the presence of Bernice Jones and Eugene Marshal.' The state was not required to...

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15 cases
  • State v. Olin
    • United States
    • Idaho Court of Appeals
    • September 5, 1986
    ...309 A.2d 492 (D.C.App.1973); State v. Clingerman, 213 Kan. 525, 516 P.2d 1022 (1973), modified on other grounds; State v. Lucas, 221 Kan. 88, 557 P.2d 1296 (Kan.1976) (instruction on common law meaning of "felonious" must be requested to preserve error on appeal); Eggleston v. State, 4 Md.A......
  • State v. Marshall and Brown-Sidorowicz, P. A.
    • United States
    • Kansas Court of Appeals
    • April 14, 1978
    ...of bond and submission to the jurisdiction of the trial court without assertion of such objections until after trial. State v. Lucas, 221 Kan. 88, 557 P.2d 1296 (1976). 2. Defendants next argue no prosecution was properly commenced and the statute of limitations has since run, barring any f......
  • State v. Dunn
    • United States
    • Kansas Supreme Court
    • July 15, 2016
    ..., 234 Kan. 393, 397–99, 672 P.2d 590 (1983) (omission of element cured by other information given to defense); State v. Lucas , 221 Kan. 88, 89–90, 557 P.2d 1296 (1976) (emphasizing statutory governance of charging document contents, need for basic clarity under modern rationale for pleadin......
  • State v. Ribadeneira
    • United States
    • Kansas Court of Appeals
    • August 2, 1991
    ...an offense in the language of the statute is sufficient. State v. Garner, 237 Kan. 227, 237, 699 P.2d 468 (1985); State v. Lucas, 221 Kan. 88, 89, 557 P.2d 1296 (1976); State v. Barry, 216 Kan. 609, 619, 533 P.2d 1308 We see no reason to belabor the point. The information in this case charg......
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