State v. Price, 47370

• Decision Date: 07 December 1974
• Docket Number: No. 47370,47370
• Citation: 529 P.2d 85,215 Kan. 718
• Parties: STATE of Kansas, Appellee, v. Clifford D. PRICE, Appellant.
• Court: Kansas Supreme Court

Page 85

529 P.2d 85

215 Kan. 718

STATE of Kansas, Appellee, v. Clifford D. PRICE, Appellant.

No. 47370.

Supreme Court of Kansas.

Dec. 7, 1974.

Syllabus by the Court

The record in a prosecution for aggravated burglary and rape is examined and it is held: The trial court did not commit error (1) in its instruction defining reasonable doubt; (2) in overruling a motion for judgment of acquittal because there was no proof of knowledge that a human being was in the building at time of entry; (3) in graning permission to endorse an additional witness during the course of the trial; (4) in overruling defendant's objections to the sufficiency of the information; (5) in permitting the corss-examination of a defense witness concerning a prior conviction for robbery for the purpose of impeaching the witness; and (6) in not holding the rape statute (K.S.A.1973 Supp. 21-3502) unconstitutional because it discriminates against the male sex.

Kenneth W. Pringle, Wichita (Court-appointed), argued the cause and was on the brief for appellant.

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

KAUL, Justice:

Defendant, Clifford D. Price, appeals from convictions by a jury of aggravated burglary (K.S.A.1973 Supp. 21-3716) and rape (K.S.A.1973 Supp. 21-3502).

The events giving rise to the charges against defendant occurred during the evening of December 19, 1972, at the Wichita apartment of Dean Lee McDonald, which was also occupied by Debra Dirks, who was identified as McDonald's fiancee. McDonald, who testified as a state witness, testified that he was in fear of harm from defendant by reason of two encounters with defendant at the McDonald apartment on two occasions prior to the night in question. The first of these was described by McDonald as an uninvited visit by defendant and codefendant, William Mewborn, who long overstayed their welcome. The second encounter came about after McDonald discovered that some articles which he had stored for defendant-at his request-were stolen property. After McDonald notified the police, defendant was arrested in connection with the stolen property.

On the night in question McDonald observed defendant drive up to the apartment in Mewborn's automobile. McDonald locked the door to the apartment, told Miss Dirks to hide, then slipped out a rear window of the apartment, went to a neighbor's house, and called the police. After McDonald left the apartment, defendant and Mewborn apparently forced open the door and entered the apartment. In the meantime, Miss Dirks had locked herself in the bathroom. She testified that defendant, after locating her whereabouts, forced the lock on the bathroom door and by force took her into the bedroom, removed part of her clothing, and raped her. When the police entered the apartment they found Mewborn sitting in the front room and the bathroom door with its latch broken off. One of the officers attempted to enter the bedroom, the was delayed by defendant holding the door. After a short struggle the officers gained entrance to the bedroom and described defendant as holding his pants just above his knees and observed Miss Dirks lying on the bed partially unclothed.

Mewborn was charged with aggravated burglary and found not guilty by a jury. Defendant was charged with aggravated burglary, rape and possession of marijuana. The marijuana count was dismissed prior to trial.

Defendant raises numerous issues on appeal. His first point consists of a two-pronged attack on the reasonable doubt instruction given by the trial court. He first argues that no instruction should have been given defining reasonable doubt and cites State v. Larkin, 209 Kan. 660, 498 P.2d 37, in support of his argument.

In several recent cases this court has stated that 'reasonable doubt' are words of common understanding and an attempt to give a jury a more explicit definition thereof is unnecessary where the jury has been otherwise fully instructed concerning burden of proof, presumption of innocence and the necessity of proof beyond a reasonable doubt. (State v. Larkin, supra; and PIK (Criminal) 52.04, p. 49.) However, this court has never held that giving an instruction defining reasonable doubt amounted to prejudicial error. In the recent case of State v. Winston, 214 Kan. 525, 520 P.2d 1204, we reiterated a statement made in the Larkin case that the words 'reasonable doubt' are clear in their meaning. In connection with the point raised by defendant here, we further stated in Winston:

'Although the above premise is sound it does not follow that prejudicial error flows therefrom. This court will not reverse a conviction merely because a reasonable doubt instruction was given. . . .' (214 Kan. p. 530, 520 P.2d at p. 1209.)

Defendant further contends that the court, having elected to instruct on a definition of reasonable doubt, committed error in refusing his instruction and submitting its own definition of reasonable doubt.

Defendant requested the following instruction:

'You are instructed that before you can find a defendant guilty of any offense that your must find that he is guilty beyond a reasonable doubt and that a reasonable doubt is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say that they feel an abiding conviction to a moral certainty of the truth of the charge; that is, to a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it.'

An instruction in essentially the same language was approved in State v. Smith, 84 Kan. 646, 114 P. 1074.

The trial court instructed on proof beyond a reasonable doubt in the following language:

'As you have been instructed, before you can find the defendant guilty of any offense, you must be satisfied of his guilt beyond a reasonable doubt. Stated another way, if you have a reasonable doubt as to the existence of any of the elements of the offense, you must acquit the defendant.

'By requiring the State to prove their case beyond a reasonable doubt is not meant that they are required to prove the case to a mathematical or scientific certainty. Few, if any, things in affairs of men are capable of such proof. All that is required is that the proof erase from the minds of the jury, any reasonable doubt as to the guilt of the defendant.'

Defendant objects to the trial court's instruction because he says it instructed as to what a 'reasonable doubt' is not, rather than what it is. We find no error in such an instruction if it tends to aid the jury in arriving at a proper verdict. A similar instruction drafted in a negative concept was approved in State v. McLaughlin, 207 Kan. 594, 485 P.2d 1360. We further note that in the instant case the defendant has not seen fit to place the other instructions in the record. It is, therefore, impossible for us to determine if there was any prejudicial error in the instruction given. We must review the instructions as a whole. Since the other instructions were not set out in the record we are precluded from reviewing the isolated instruction to which the alleged error was directed. (State v. Ireton, 193 Kan. 206, 392 P.2d 883.)

In connection with the point under consideration, we further observe that this court has considered reasonable doubt instructions given in various language and, although criticizing the language used in certain instances, we have seldom found reversible error. (See Hatcher's Kansas Digest (Rev.Ed.), 1974 Supp. to Vols. 1-3, Criminal Law 'Reasonable Doubt', § 333.) As indicated in the Winston and Larkin opinions and as suggested by the PIK (Criminal) Committee Comment, we believe the better practice, and that which is less likely to confuse the jury, is to fully instruct concerning...