State v. Rasch
Decision Date | 08 July 1988 |
Docket Number | No. 61067,61067 |
Citation | 758 P.2d 214,243 Kan. 495 |
Parties | STATE of Kansas, Appellee, v. Kenneth RASCH, Appellant. |
Court | Kansas Supreme Court |
Syllabus by the Court
1. 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.
2. Lack of jurisdiction or the failure of the complaint, information, or indictment to charge a crime shall be noticed by the court at any time during the pendency of the proceeding.
3. When the defendant and his attorney are present and permission is obtained from the judge, the State may orally amend the complaint or information any time before the verdict or finding, if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.
4. When the jury has been properly instructed on the elements of the crime, a complaint or information which the State has orally amended to correct a deficiency is valid unless the substantial rights of the defendant are prejudiced. The amendment to the complaint or information may be shown by interlineation on the complaint or information, by the filing of an amended complaint or information, or by a journal entry stating the amendment to the complaint or information.
Shannon Crane, Asst. Appellate Defender, argued the cause, and Brad L. Keil, Asst. Appellate Defender, and Benjamin C. Wood, Chief Appellate Defender, were on the brief for appellant.
Ty Kaufman, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellee.
Kenneth Rasch appeals convictions of four counts of aggravated robbery, K.S.A. 21-3427, one count of attempted aggravated robbery, K.S.A. 21-3427 and K.S.A. 1987 Supp. 21-3301, and two counts of aggravated battery, K.S.A. 21-3414. Rasch contends (1) that his convictions for aggravated robbery should be reversed because the State did not amend the jurisdictionally defective complaint by interlineation or by filing an amended complaint; and (2) that the trial court erred by admitting Rasch's incriminating statements.
On September 11, 1986, a man and woman, later identified as the defendant Kenneth Rasch and his companion Glenna Preston, entered the State Street Club in Lindsborg, Kansas. After having drinks, the couple left the club. Shortly thereafter, Rasch re-entered the club and ordered the bartender to give him the money from the cash drawer. When the bartender hesitated, Rasch held a loaded pistol to the bartender's neck. The bartender placed approximately $118.00 from the cash register on the bar.
When one of the six Bethany College students in the establishment approached the bar, the defendant pointed the gun at him and demanded and received the student's money. Rasch then struck one of the female students with the gun. When one of her male companions attempted to assist her, Rasch struck him with the gun. Rasch then ordered everyone to stand behind the bar, place their money on the bar, and lie down. One of the students grabbed Rasch and wrestled him to the floor while others summoned the police. After the police arrived, Rasch was taken to the hospital and treated for lacerations he received while being apprehended.
As police interviewed witnesses, Glenna Preston drove up in front of the bar and told an officer that she had been there earlier "with someone else." The officer took Preston to the hospital to see if she could identify the robber. At the hospital emergency room, Preston initially denied knowing Rasch. Feeling Preston was lying, the officer arrested her as an accomplice to the crime, and then handcuffed her. When Preston stated that she should take another look to see if she could identify the robber, the officer took her back into the emergency room. Preston walked over to Rasch and stated, "Look what you've got me into." Rasch answered, "Sorry I got you into this mess." At trial, Rasch's incriminating statement was admitted. All eight persons present at the bar positively identified Rasch as the robber. Rasch was convicted of all counts.
Rasch first contends that the complaint was jurisdictionally defective and his conviction for aggravated robbery void because in each of the four aggravated robbery counts the complaint failed to allege an essential element: that the taking was by force or threat of harm. Robbery is defined as the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force. K.S.A. 21-3426. Aggravated robbery is a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery. K.S.A. 21-3427.
Each of the counts filed against defendant stated:
"Count I: ... feloniously and willfully take property, to wit: [$5.00] in cash from the person of [John M. Paulsen] while the said Kenneth Rasch was armed with a dangerous weapon, to-wit: a .32 caliber handgun, contrary to K.S.A. 21-3427 the penalty sections being K.S.A. 21-4501(b) and 21-4503(1)(a) a Class B Felony."
Nearly two months before trial, the prosecutor recognized the omission in the complaint and orally moved to amend the charges. Without objection from defendant, a journal entry was filed which stated:
Conceding that the complaints as originally filed lacked the statutory language "[b]y threat of bodily harm ... or by force," the State argues that the journal entry cured the defective complaint.
Historically, the purpose of the information or complaint was twofold: (1) to disclose sufficient factual information to enable a magistrate to make an intelligent and impartial finding that there is probable cause to believe that a specific crime has been committed by the defendant and (2) to inform the defendant of the particular offense alleged to have been committed and to protect him against double jeopardy. State v. Jones, 242 Kan. 385, 394, 748 P.2d 839 (1988); 41 Am.Jur.2d, Indictments and Informations § 3, p. 882.
Early Kansas cases held that an information was sufficient if it fairly apprised the defendant of the crime charged against him and was definite enough so that the court would have no trouble in ascertaining the correct sentence to impose. State v. McCarthy, 124 Kan. 20, 257 P. 925 (1927); State v. Hutzel, 108 Kan. 456, 195 P. 887 (1921). In State v. Neer, 169 Kan. 743, 222 P.2d 558 (1950), the defendant contended that the information charging him with burglary was insufficient in that it did not contain the element of "entering." This court concluded that the information, which charged defendant with breaking into a building was sufficient, and that no information would be found insufficient which did not substantially prejudice the rights of the defendant. 169 Kan. at 746, 222 P.2d 558. A conviction based on a complaint or information which did not substantially prejudice the rights of a defendant was valid if the jury had been properly instructed on the elements of the crime.
State v. Minor, 197 Kan. 296, 416 P.2d 724 (1966), changed the law regarding the sufficiency of complaints. Minor was charged with first-degree manslaughter. The complaint alleged first-degree manslaughter as defined by the then-controlling statute, K.S.A. 21-407 (Corrick), which stated:
"The killing of a human being without a design to effect death, by the act, procurement or culpable negligence of another, while such other is engaged in the perpetration or attempt to perpetrate any crime or misdemeanor, not amounting to a felony, in cases where such killing would be murder at the common law, shall be deemed manslaughter in the first degree."
Raising the issue sua sponte, the Minor court took exception to the fact that the complaint failed to allege that the killing described would be murder at common law and reversed Minor's conviction, stating:
197 Kan. at 299, 416 P.2d 724.
Since Minor, this court has reversed a number of criminal convictions on the basis that the complaints failed as jurisdictional instruments. Rasch relies upon State v. Howell & Taylor, 226 Kan. 511, 601 P.2d 1141 (1979), where defendants appealed from their convictions of aggravated robbery, arguing that even though the information alleged an unlawful, willful, and felonious taking while armed with a dangerous weapon, it was jurisdictionally defective because it failed to allege that the taking was done by force or...
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... ... Wilson, 240 Kan. 606, 608, 731 P.2d 306 (1987). Since the amendments in this case were made orally, he argues that the State is bound by the original written information ... The State, in response, relies upon the recent case of State v. Rasch, 243 Kan. 495, Syl. pp 3, 4, 758 P.2d 214 (1988), in which this court held that an information may be orally amended under certain circumstances ... In State v. Wilson, 240 Kan. 606, 731 P.2d 306, the appellant was convicted of second-degree murder. The information purported to ... ...
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