State v. McClanahan, s. 47012

• Decision Date: 12 May 1973
• Docket Number: 46963,Nos. 47012,s. 47012
• Citation: 510 P.2d 153,212 Kan. 208
• Parties: STATE of Kansas, Appellant, v. Carroll William McCLANAHAN, Appellee. STATE of Kansas, Appellant, v. Larry Dean TORRENCE, Appellee.
• Court: Kansas Supreme Court

Page 153

510 P.2d 153

212 Kan. 208

STATE of Kansas, Appellant, v. Carroll William McCLANAHAN, Appellee.

STATE of Kansas, Appellant, v. Larry Dean TORRENCE, Appellee.

Nos. 47012, 46963.

Supreme Court of Kansas.

May 12, 1973.

Syllabus by the Court

1. Instructions to a jury are to be considered as a whole and in their entirety, and each instruction is to be considered in connection with all other instructions given in the case.

2. When the trial is to a jury, questions of law shall be decided by the court and issues of fact shall be determined by the jury. (K.S.A.1972 Supp. 22-3403 (3).)

3. Although it must be conceded that the jurors in a criminal case have the raw physical power to disregard both the rules of law and the evidence in order to acquit a defendant, it is the proper function and duty of a jury to accept the rules fo law given to it in the instructions by the court, apply those rules of law in determining what facts are proven and render a verdict based thereon.

4. The so-called 'do what you think is fair' instruction set forth in PIK Criminal 51.03 is disapproved for use in Kansas.

J. J. B. Wigglesworth, Asst. Dist. Atty. Argued the cause, and Vern Miller, Atty. Gen., and Margaret Jordan, Dist. Atty., were with him on the briefs for appellant.

Howard S. Levitan, Prairie Village, argued the cause, and John W. Gilliford, Prairie Village, was with him on the brief for Carroll Villiam McClanahan, appellee, and Bernis G. Terry, Olathe, was on the brief for Larry Dean Torrence, appellee.

FROMME, Justice:

The present appeals were perfected by the state upon questions reserved relating to an identical instruction given in two separate criminal cases.

Carroll Willaim McClanahan was acquitted by a jury of the offense of grand theft as defined in K.S.A.1972 Supp. 21-3701(a). Larry Dean Torrence was acquitted by a jury of the offense of burglary as defined in K.S.A.1972 Supp. 21-3715. Separate appeals were filed in this court and then consolidated on a stipulation by the parties that the questions are identical, and a decision in one case will control the other. Regardless of our decision here the defendants cannot again be placed in jeopardy. We believe an answer to the question is of general importance to the administration of criminal justice in this state.

This instructions which were offensive to the state are identical in wording in both cases. The instruction appears to have been copied verbatim from pattern jury instructions for use in criminal proceedings prepared by a committee sponsored by the Judicial Council of Kansas. (See PIK Criminal 51.03) Instruction No. 1 as given reads as follows:

'It is presumed that juries are the best judges of fact. Accordingly, you are the sole judges of the facts in this case.

'I think it requires no explanation, however, that judges are presumed to be the best judges of the law. Accordingly, you must accept my instructions as being correct statements of the generally accepted legal principles that apply in a case of the type you have heard.

'The order in which the instructions are given is no indication of their relative importance. You should not single out one or more instructions and disregard others but should construe each one in the light of and in harmony with the others.

'These principles are intended to help you in reaching a fair result in this case. You should give them due respect. Moreover, justice will ordinarily be done by applying them as a whole to the facts which you find have been proven. You should do just that if, by doing so, you can do justice in this case.

'Even so, it is difficult to draft legal statements that are so exact that they are right for all conceivable circumstances. Accordingly, you are entitled to act upon your conscientious feeling about what is a fair result in this case and acquit the defendant if you believe that justice requires such a result.

'Exercise your judgment without passion or prejudice, but with honesty and understanding. Give respectful regard to my statements of the law for what help they may be in arriving at a conscientious determination of justice in this case. That is your highest duty as a public body and as officers of this court.'

When the instruction was proposed to be given to the juries by the trial court, the defendants by their attorneys stated in open court they had no objection.

The state objected to the instruction and argued it was highly prejudicial. The state made the following specific objections.

'. . . (I)t is not the correct statement of the law, it allows the jury to disregard all of the other instructions that the Court gives them, it is against the whole worldly legal process of conducting a trial, of letting the jurors only determine the questions of fact, it is allowing them to make determinations as to questions of law, and it is allowing them to excede their proper province. . . .'

On appeal the state contends this instruction, and more specifically the last three paragraphs of the instruction, is contrary to Kansas law and deprives the state of a fair and impartial trial by jury by directing the jury to act upon its own conscientious feeling about what is a fair result regardless of the rules of law stated in the other instructions. In other words the instruction directs the jury that it may nullify the rules of law given by the court if it believes justice requires such a result.

In examining the question presented we must keep in mind that instructions to a jury are to be considered as a whole and in their entirety, and each instruction is to be considered in connection with all other instructions given in the case. Portions of the instructions should not be taken out of context if as a whole they appear to adequately cover the law of the case. (Schroeder v. Richardson, 196 Kan. 363, 411 P.2d 670; Thompson v. Norman, 198 Kan. 436, 424 P.2d 593; State v. Jerrel, 200 Kan. 415, 421, 436 P.2d 973.)

The traditional concept that the jury is required to abide by the instructions given by the court, even though it might believe the instructions inappropriate in the particular case, is embodied in the instruction set forth in PIK Criminal 51.02; it has generally been given in this state. The usual instruction which has been given reads as follows:

'It is my duty to instruct you in the law that applies to this case and it is your duty to follow all of the instructions. You must not single out one or more instructions and disregard others. You should construe each instruction in the light of and in harmony with the other instructions, and you should apply the instructions as a whole to the evidence. You should decide the case by applying the law to the facts as you find them. The order in which the instructions are given is no indication of their relative importance.' (PIK Criminal 51.02)

Kansas has long recognized the diverse functions of the court and the jury, and in the early history of the criminal law of this state this court said:

'. . . (T)he jury are the exclusive judges of the facts; but not so with the questions of law that are involved. In those cases it is the duty of the court to instruct the jury and decide for them all questions of law that properly arise in the case; and it is incumbent upon the jury to apply the law so given to the facts of the case, and conform their verdict and decision to the instructions. . . .' (State v. Verry, 36 Kan. 416, 419, 13 P. 838, 840.)

This conception of the diverse functions of court and jury appears in the Kansas code of criminal procedure, effective July 1, 1970, in K.S.A.1972 Supp. 22-3403(3) which provides: 'When the trial is to a jury, questions of law shall be decided by the court and issues of fact shall be determined by the jury.'

This same conception is inherent throughout our statutory procedural law Enforcement of the rules of law is generally considered to be for the protection of an accused. Questions arising during a trial on materiality, relevance and competency of evidence are questions of law to be determined by the court (K.S.A. 60-401 et seq., as amended, K.S.A.1972 Supp. 22-3415). The court must determine whether confessions, admissions and seized evidence are to be suppressed or admitted as evidence (K.S.A.1972 Supp. 22-3215, 22-3216). K.S.A.1972 Supp. 22-3414(3) relating to instructions provides:

'(3) At the close of the evidence or at such earlier time during the trial as the judge reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The judge shall instruct the jury at the close of the evidence before argument and the judge may, in his discretion, after the opening statements, instruct the jury on such matters as in his opinion will assist the jury in considering the evidence as it is presented.

'The court shall pass upon the objections to the instructions and shall either give each instruction as requested or proposed or refuse to do so, or give the requested instruction with modification. All instructions given or requested must be filed as a part of the record of the case.

'The court reporter shall record all objections to the instructions given or refused by the court, together with modifications made and the rulings of the court.

'No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearly erroneous. Opportunity shall be given to make the objections out of the hearing of the jury.'

Clearly this statute acknowledges that the function of the trial court is to determine the applicable law of the case and to preserve a record thereof for appellate review. With the diverse functions of the court and jurt so firmly entrenched in the law of this state, what can be the purpose of this proposed alternative...