State v. Mills, 57706
| Decision Date | 25 October 1985 |
| Docket Number | No. 57706,57706 |
| Parties | STATE of Kansas, Appellant, v. David L. MILLS, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. To constitute concealment of the fact of a crime sufficient to toll the statute of limitations, there must be a positive act done by or on behalf of the accused calculated to prevent discovery of the fact of the crime. Mere silence, inaction or nondisclosure by the accused is not concealment of the fact of the crime as contemplated by K.S.A. 21-3106(3)(c).
2. To constitute concealment by a third party of the fact of a crime for or on behalf of an accused there must be some positive action by the accused along with a direct connection between the accused and the third party which results in the concealment.
Bill Baldock, Alma, argued the cause and was on brief for appellee.
Edwin A. Van Petten, Sp. Prosecutor, Eskridge, argued the cause and Robert T. Stephan, Atty. Gen., was with him on brief for appellant.
This is an appeal from a Pottawatomie District Court judgment dismissing a special prosecutor's information that charged David L. Mills with enticement of a child in violation of K.S.A. 21-3509. The district court, in a pretrial ruling upon a motion filed by Mills, dismissed the charge, finding that the action was barred by the statute of limitations, K.S.A. 21-3106.
The facts in the case are not disputed. In July of 1979, the defendant, David L. Mills, stopped at the home of his friend, Jerry Lynn Medley. The victim, a 10-year-old boy, was staying with Medley. The three persons got into Mills' pickup truck and drove to a secluded area where both men began fondling the genital area of the minor victim. Shortly thereafter the three returned to Medley's home. There is no showing that Mills ever had any further contact with the boy although Medley evidently continued his relationship with the victim.
The defendant was originally charged on August 16, 1984, with taking indecent liberties with a child (K.S.A.1984 Supp. 21-3503). An amended complaint filed October 12, 1984, added the charge of enticement of a child (K.S.A. 21-3509), and on this same date the indecent liberties charge was dismissed. During the hearing upon defendant's motion to dismiss, the transcript of the preliminary hearing was submitted to the court. The victim testified at the preliminary hearing that he had not reported the incident earlier because he feared being called homosexual. Further testimony revealed that Medley had told the victim on several occasions that people might think he was homosexual if he divulged the occurrences. It was the State's theory that Medley's statements constituted threats leading to concealment of the crime, and that this concealment should also be attributed to Mills.
The sole issue raised on appeal is whether the statute of limitations was tolled by the concealment of the crime through the unsolicited acts and statements of a third party. In considering the issue presented we will assume, arguendo, that the acts of the third party, Medley, amounted to concealment.
At common law there was no time limitation for prosecuting a criminal offense. 21 Am.Jur.2d, Criminal Law § 223. In Kansas this common-law rule is altered by the terms of K.S.A. 21-3106, which provides in pertinent part:
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"(c) The fact of the crime is concealed."
Statutes of limitation are favored by the law and are to be construed liberally in favor of the accused and against the prosecution and exceptions to the statute are to be construed narrowly, or strictly, against the State. 22 C.J.S., Criminal Law § 224.
The statute has been considered and construed upon a number of occasions. State v. Gainer, 227 Kan. 670, 608 P.2d 968 (1980); State v. Watson, 145 Kan. 792, 67 P.2d 515 (1937), and cases cited therein. In Watson, a case involving embezzlement, we held:
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