State v. Milum, 47178

• Decision Date: 08 December 1973
• Docket Number: No. 47178,47178
• Citation: 516 P.2d 984,213 Kan. 581
• Parties: STATE of Kansas, Appellee, v. Stephen Decatur MILUM, Appellant.
• Court: Kansas Supreme Court

Page 984

516 P.2d 984

213 Kan. 581

STATE of Kansas, Appellee, v. Stephen Decatur MILUM, Appellant.

No. 47178.

Supreme Court of Kansas.

Dec. 8, 1973.

Syllabus by the Court

1. Compulsion, under K.S.A.1972 Supp. 21-3209, must involve a threat of the 'imminent' infliction of death or great bodily harm in order to constitute a defense to a criminal charge. Such a threat directed at some indefinite time in the future is not a defense.

2. Evidence of facts which would not as a matter of law constitute a defense to a criminal charge may properly be excluded as irrelevant.

3. In a prosecution for escape from the Kansas state penitentiary it is held: (1) the trial court did not err in excluding testimony of certain threats alleged to have been made to the defendant or in refusing to instruct on the defense of compulsion; (2) the failure of the trial court to rule on the defendant's motion for a new trial within the time prescribed by statute was not prejudicial error and did not deprive the court of jurisdiction to impose sentence.

Tom Boone, Leavenworth, argued the cause and was on the brief for appellant.

Patrick J. Reardon, County Atty., argued the cause, and Vern Miller, Atty. Gen., Hall Triplett, and Dennis Dietz, Sp. Prosecutors, were with him on the brief for appellee.

FOTH, Commissioner:

Stephen Decatur Milum was convicted by a jury of escaping from the Kansas state penitentiary and he has appealed. His basic contention is that he was prevented from putting his defense before the jury.

That defense was coercion, or compulsion, as codified by K.S.A. (now 1972) Supp. 21-3209(1):

'A person is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which he performs under the compulsion or threat of the imminent infliction of death or great bodily harm, if he reasonably believes that death or great bodily harm will be inflicted upon him or upon his spouse, parent, child, brother or sister if he does not perform such conduct.'

Insofar as this case is concerned the key statutory phrase is that the threat must be of the 'imminent' infliction of death or great bodily harm. The codification thus embodies the common law characteristics of the defense exemplified by the encyclopedists:

'. . . In order to constitute a defense, the coercion or duress must be present, imminent, and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. . . . The doctrine of coercion or duress cannot be invoked as an excuse by one who had a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily harm. And threat or fear of future injury is not sufficient.' 21 Am.Jur.2d, Criminal Law, § 100.

'The compulsion or coercion which will excuse the commission of a criminal act must be present, imminent, and impending, and of such a nature as to induce a well grounded apprehension of death or serious bodily harm if the act is not done; it must be continuous, and there must be no reasonable opportunity to escape the compulsion without committing the crime. A threat of future injury is not enough, particularly after danger from the threat has passed.' 22 C.J.S. Criminal Law § 44.

Appellant's difficulties in presenting his defense first arose prior to his opening statement. The county attorney, having gleaned the tenor of the intended defense from counsel's voir dire examination of the jurors, entered a preliminary objection in chambers to 'any testimony concerning the defendant's motives for leaving the Kansas State Penitentiary.' When defense counsel urged his right to show 'grave and immediate threat to life' as a justification, the county attorney responded, 'If he's talking about (imminent) threat of the defendant that means evidence there is a man standing beside him with a pistol or a knife going to kill you and forces you to go, it doesn't mean ideas in his mind.' The court's response was:

'I can't very well rule in advance as far as admissibility of evidence, but I will state it's my opinion that there isn't any such thing as justifiable escape, so the court will sustain any objection to evidence going to that type of motive. Of course, when he's forced to escape that is something else, but I think the state is correct in its contention what so far as the law is.'

With the ground rules thus established, the defense attempted to introduce its evidence. Larry J. Henderson, a penitentiary inmate, was asked whether he had heard anyone threaten the defendanths life. An objection was sustained. Repeated efforts to introduce the same testimony met the anyone threaten the defendant's life. An

At this point, in chambers, the defendant made the following offer of proof:

'MR. BOONE: Larry Henderson would testify that in the presence of Sam Brooks and Steve Milum that Deputy Warden Banker said to Steve Milum, 'You had better run off or I will have you shot.' And this statement was made in June or July of 1970. . . .

'MR. BOONE: Earl B. Sigler will testify in the presence of Pat Carpenter, Joe Moreno, Louis Albert Lee Green, Banker told Steve that he best find his way out of this place or he was going to have him taken care of. Albert, Lee Green, in the presence of ...