State v. Mans, 46626

• Decision Date: 03 November 1973
• Docket Number: No. 46626,46626
• Citation: 213 Kan. 36,515 P.2d 810
• Parties: STATE of Kansas, Appellee, v. Robert B. MANS, Appellant.
• Court: Kansas Supreme Court

Page 810

515 P.2d 810

213 Kan. 36

STATE of Kansas, Appellee, v. Robert B. MANS, Appellant.

No. 46626 Supreme Court of Kansas.

Nov. 3, 1973.

Rehearing Denied Nov. 30, 1973.

Syllabus by the Court

1. On appellate review of an appeal from conviction in a criminal action, the testimony is to be viewed in the light most favorable to the state.

2. Intent is a state of mind existing at the time an offense is committed and may be shown by acts, circumstances and inferences deducible therefrom and need not be established by direct proof.

3. While the withdrawal of testimony erroneously admitted, coupled with an admonition to the jury to disregard it, will ordinarily cure the error, where the evidence is erroneously admitted under such circumstances that it cannot be said the jury was not prejudiced; withdrawal of the testimony will not cure the error.

4. Under the provisions of K.S.A.1972 Supp. 22-3213(2) a defendant in a criminal action, for purposes of cross-examination, is entitled to the production of those portions of any statement or report made by a police officer relating to the subject matter of the officer's testimony after the officer has testified on direct examination as a witness for the state.

5. The record is examined and it is held: For reasons set forth in the opinion, the defendant did not receive a fair and impartial trial.

Russell Shultz, Wichita, argued the cause and was on the brief for appellant.

Clifford L. Bertholf, Asst. Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., and Keith Sanborn, Dist. Atty., were with him on the brief for appellee.

KAUL, Justice:

The defendant, Robert B. Mans, was convicted by a jury of aggravated assault (K.S.A.1972 Supp. 21-3410). The prosecution stemmed from a shooting incident, with some racial overtones, which took place in a low rent housing development in Wichita.

Between 9 and 10 p. m. on July 28, 1971, a number of rounds of .22 calibre rifle bullets were fired from inside a 1959 Chevrolet Convertible into a house occupied by Donna B. Shugart, a black woman, and her children. There was evidence that someone in the passing automobile was heard to cry out obscenities including 'Nigger get out! Nigger go home!' The automobile was identified as owned and driven by Gary Ashley. In addition to Ashley the automobile was occupied by Vesta Ross and defendant sitting in the front seat and Joel Jones and Glynis Ross occupying the rear seat. Defendant took the stand in his own behalf and admitted that he fired his rifle at a house in the neighborhood, but claimed the house, which he fired at, was unoccupied. No one was injured as a result of the shooting. After a police investigation defendant was charged, tried, and convicted.

On appeal defendant contends the evidence was insufficient to sustain the jury's verdict and asks this court for a judgment for discharge. Defendant also raises numerous trial errors.

With respect to the sufficiency of the evidence, defendant argues that intent to do bodily harm to someone was not shown. Our consideration of this point is governed by the familiar rule that in reviewing a criminal conviction on appeal, the evidence is to be viewed in the light most favorable to the state. (State v. Darling, 208 Kan. 469, 493 P.2d 216; State v. Thomas, 155 Kan. 374, 155 P.2d 375; and State v. Davis, 106 Kan. 527, 188 P. 231.) Concerning intent, in State v. Gatewood, 169 Kan. 679, 221 P.2d 392, we said:

'Intent is a state of mind existing at the time a person commits an offense. If intent must have definite and substantive proof it would be almost impossible to convict, absent facts disclosing a culmination of the intent. The mind of an alleged offender, however, may be read from his acts, conduct and inferences reasonably to be drawn therefrom. . . .' (p. 684, 221 P.2d p. 396.)

In State v. Decker, 207 Kan. 374, 485 P.2d 171, we held:

'In a criminal action it has been held a person is presumed to intend the natural and probable consequences of his voluntary and deliberate act, and if the commission of an unlawful act is proved, it will be presumed that such act was done with criminal intent.' (Syl. 1.)

In the instant case there was evidence that defendant had driven past the Shugart house at least once prior to the shooting. At the time of the shooting, lights were burning and an automobile was parked in the driveway. We believe the jury had ample evidence to conclude that defendant knew or should have known that Donna Shugart or someone was in the house.

In view of what has been said defendant's contention that he be discharged cannot be sustaiend. However, we are convinced that the state of the record in other respects requires the granting of a new trial. While defendant has failed to show prejudice sufficient to warrant reversal with respect to many points raised, several of defendant's contentions have merit.

Defendant strenuously argues the trial court erred in directing the state, after it had rested, to reopen its case to present testimony relating to the offense of criminald amage to property as defined in K.S.A.1972 Supp. 21-3720. Although the record is not entirely clear, it appears the trial court mistakingly thought criminal damages to property was a lesser included offense within aggravated assault, the crime charged in the information. On appeal, the state concedes that criminal damages to property is not a lesser included offense. Apparently, the state took this position at trial, but, nevertheless, the trial court insisted the case be reopened. The evidence in question consisted primarily of the testimony of Donna Shugart and the project manager of the local housing authority concerning the damage to the house and the cost of repairs. After the evidence was submitted the state again rested, but once again the trial court, over defendant's objection, moved in and directed the state to recall Mrs. Shugart and inquire if she had consented to the shooting into the house on the day in question. While this later evidence may be said to be related to the offense charged and, thus, admissible it was adduced by direction of the court after both the state and defendant had rested. In other words, the trial court, for a second time, assumed the role of prosecutor.

Before submitting the case to the jury the trial court heard further arguments of counsel and finally concluded that criminal damage to property was not a lesser included offense. The court announced that the instruction on this point would be removed from the instructions, the evidence stricken, and the jury admonished accordingly.

The state concedes error, but says it was cured by the court's subsequent action in striking the evidence and admonishing the jury; and further that in any event the matter may be written off as 'harmless error.' Defendant argues, on the other hand, that the action of the trial court amounted to an invasion of defendant's constitutional right to a fair trial. We do not believe the error rises to constitutional stature, thus, requiring a conclusion of harmless error beyond a reasonable doubt (...