State v. Osburn
| Decision Date | 05 April 1975 |
| Docket Number | No. 47565,47565 |
| Citation | 216 Kan. 638,533 P.2d 1229 |
| Parties | STATE of Kansas, Appellee, v. Carl Dean OSBURN, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A trial court may allow an amendment to an information in its discretion both as to form and substance after arraignment and plea and before commencement of the trial.
2. Permission granted by a trial court to amend an information after a plea of not guilty and before the jury has been sworn to try the case does not constitute reverible error in the absence of any reasonable contention or any showing that the interests of the defendant were thereby prejudiced.
3. Generally following the granting of a new trial, the state is in the same position with regard to amendment of the information as though no trial had ever been had in the case.
4. The record is examined in a criminal prosecution for possession of a narcotic drug and it is held, no error is shown.
R. Daniel Lykins, Topeka, argued the cause, and was on the brief for appellant.
Gene M. Olander, Dist. Atty., argued the cause, and Court T. Scheneider, Atty. Gen., was with him on the brief for appellee.
This is a direct appeal in a criminal action in which the defendant-appellant, Carl Dean Osburn, was convicted of one count of possession of a narcotic drug, heroin, under K.S.A. 65-2502 (Corrick). This case was previously before this court on appeal in State v. Osburn, 211 Kan. 248, 505 P.2d 742. The factual circumstances which brought about this criminal prosecution are set forth in full in that opinion. The defendant, Osburn, was originally convicted of one count of selling a narcotic drug, heroin, and one count of conspiracy to sell cocaine, K.S.A. 1970 Supp. 21-3302. The defendant Osburn appealed that conviction. The case was reversed for the reason that the defendant had raised the theory that he was a procuring agent and it was error for the trial court not to instruct on the procuring agent defense when the defendant so requested and where the record disclosed evidence which reasonably supported that defense. In our former decision we remanded the case to the district court for a new trial on both of the original counts.
Following reversal on the first appeal the district attorney filed an amended information charging the appellant with possession of a narcotic drug, to-wit: heroin. The original information charged in count one that the defendant did 'possess, have under his control and sell a narcotic drug, to-wit: heroin . . .' In the amended information the state simply struck out the words 'and sell' and designated the offense charged to be possession of a narcotic drug. With the exception of these changes the original information and the amended information were the same. In addition the district attorney dismissed count two charging conspiracy to sell cocaine. The defendant then moved the court for an order to quash the amended information. This motion was overruled. After the motion to quash had been overruled the defendant was arraigned on the amended information and entered his plea of not guilty to the charge of possession of a narcotic drug, heroin. Thereafter the parties waived a jury and the case proceeded to trial by the court. The case was submitted to the court on a written stipulation of facts which is as follows:
'STIPULATION OF FACTS
'(Filed April 20, 1973)
'It is hereby agreed by and between the parties hereto that the following set forth facts are agreed and stipulated to as being the evidence that would be produced by the State of Kansas, plaintiff at the time of the trial herein.
'Officers Collie and Ritchie received the package containing the white power from Officer Jones and immediately transported the chemical to the Kansas Bureau of Investigation Lab where Robert Harvey and Loretta Shepekk, chemists, found the substance heroin.'
The trial court considered the stipulation of facts and found the defendant guilty of possession of a narcotic drug, to-wit: heroin. In imposing sentence on the conviction the district court gave the defendant credit for the time he had served under the previous sentence and placed the defendant on probation for a period of three years. The defendant has appealed to this court claiming trial errors.
The first point raised by the defendant Osburn on this appeal is that the trial court erred in failing to sustain the defendant's motion to quash the amended information which charged the defendant with the possession of a narcotic drug, a different crime from selling a narcotic drug which was contained in court one of the original information. The defendant relies upon K.S.A. 22-3201(4) which states as follows:
'(4) The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.'
The defendant maintains that his substantial rights were violated because he was compelled to answer a new and additional crime when the district attorney was permitted to file the amended information. The defendant argues that the trial court erred because when the prosecutor found that the state could not convict the defendant of selling a narcotic drug because of the procuring agent defense, defendant was then charged with possession of a narcotic drug. We believe that the Kansas code of criminal procedure is not as restrictive on the right of the district attorney to amend an information as the defendant is contending. K.S.A. 22-3201(4) is patterned closely after Rule 7(e) of the Federal Rules of Criminal Procedure which provides:
In interpreting this rule the federal courts have held that since the...
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State v. McCowan
...degree. State v. Mauldin, 215 Kan. 956, 529 P.2d 124 (1974); State v. Lamb, 209 Kan. 453, 497 P.2d 275 (1972). In State v. Osburn, 216 Kan. 638, 533 P.2d 1229 (1975), we "A trial court may allow an amendment to an information in its discretion both as to form and substance after arraignment......
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State v. Ribadeneira
...See State v. Bell, 224 Kan. 105, 106, 577 P.2d 1186 (1978); State v. Lamb, 215 Kan. 795, 798, 530 P.2d 20 (1974). of trial. State v. Osburn, 216 Kan. 638, Syl. p 1, 533 P.2d 1229 In the case under consideration, the court permitted the State to amend by adding the names of three investors o......
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State v. Morton
...of the same places the party accused in the same position as if no trial had been had. [Citations omitted.]" State v. Osburn, 216 Kan. 638, 641-42, 533 P.2d 1229 (1975). There is, however, a recognized exception to this general rule for certain egregious prosecutorial misconduct, under the ......
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State v. Hayden, 88,650.
...arraignment and plea before commencement of the trial." State v. Woods, 250 Kan. 109, 113, 825 P.2d 514 (1992); State v. Osburn, 216 Kan. 638, 641, 533 P.2d 1229 (1975). "This court . . . `distinguish[es] between amendments before trial and those which are made during the course of the tria......