State v. Runnels, 45283
| Decision Date | 14 June 1969 |
| Docket Number | No. 45283,45283 |
| Citation | 456 P.2d 16,203 Kan. 513 |
| Parties | STATE of Kansas, Appellee, v. Carl Dennis RUNNELS, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. It is the duty of the trial court to instruct the jury on the law applicable to the theory of both the prosecution and the accused so far as they are supported by any competent evidence and are germane to the issues raised on the charge in the information.
2. Generally the theory of the accused is adequately set forth in the instructions by including a converse charge under which the jury may find the accused not guilty if any essential element of the crime is not proven, provided such converse charge is preceded in the instruction by a recitation of all essential elements required to be proven, in language the ordinary layman on a jury can understand.
3. In an action where the accused was found guilty of the unlawful possession and control of a pistol after conviction of a felony the record is examined and it is held: (1) The trial court adequately instructed the jury on the theory of the defense; (2) The admission of testimony on cross-examination concerning a collateral issue did not constitute prejudicial error, and (3) No error is found.
Rex L. Culley, Russell, argued the cause and was on the brief, for appellant.
Michael S. Holland, County Atty., argued the cause and Kent Frizzell, Atty. Gen., was with him on the brief, for appellee.
Carl Dennis Runnels was convicted of the unlawful possession and control of a pistol after conviction of a felony. (K.S.A. 21-2611.) He was sentenced to the Kansas State Penitentiary at Lansing, Kansas, for not more than five years. Two trial errors are specified on appeal. One of these concerns the court's instructions. The second is directed at testimony introduced during the trial.
The circumstances leading to defendant's arrest were related at the trial by Arlen Heffel. A complaint made to the sheriff of Russell county by a passenger in Mr. Heffel's automobile resulted in defendant's arrest and conviction.
At 8:30 p. m. on May 27, 1967, Mr. Heffel went for a ride in his automobile. His wife and a friend, Jerry Zorn, accompanied him. They left Dorrance and drove to Russell. On the way to Russell the defendant passed them in his car. The defendant turned his car around and followed the Heffel car into Russell.
The Heffels stopped at a tavern, the Office Lounge. The defendant followed them into the tavern but did not speak or associate with them. After drinking a 'couple of beers' the Heffels and Mr. Zorn left this tavern and went to a second tavern, the Red Lounge. The defendant followed them into this tavern. He did not talk or associate with them. After drinking a 'couple of beers' the Heffels started back to Dorrance. The defendant followed. The Heffels noticed they were being followed, drove into the driveway of a motel and stopped to see what the defendant wanted. The defendant followed them into the driveway but drove on without stopping. He drove east on the highway toward Dorrance and stopped his car on the right side of the road at the highway interchange where Highway I-70 crosses over Highway U. S. 40. The time was about midnight. When Heffel saw the defendant's car parked under the overpass he pulled up to see what the defendant wanted. When the two cars were parallel Mr. Zorn saw a pistol in the defendant's hand and advised Mr. Heffel of this fact. They left immediately and in haste.
The defendant Runnels testified he raced them to Dorrance. He had been drinking whiskey and beer during the evening. He was not acquainted with Mr. Heffel or Mr. Zorn but he wanted to race them in his car. When he stopped his car at the interchange something slid out from under the front seat of his car. He thought it was his bottle of whiskey so he reached down to pick it up and discovered it was a gun. While he had the gun in his hand the Heffel car drove by. He laid it on the seat of his car and then raced the Heffels to Dorrance. He lost the race. At Dorrance he turned his car around and headed back toward Russell. He became sleepy and drove to the side of the road and went to sleep.
In response to the complaint of Mr. Zorn the sheriff of Russell county located the defendant at 1:00 a. m. on the highway leading to Russell. He was sleeping in his car with the gun on the front seat beside him.
The defendant explained the presence of this strange gun in his car. He said he loaned his car to a half-brother that afternoon. This brother owned several guns, and defendant stated the brother must have left this gun under the front seat in defendant's car.
Ownership of the pistol was not established. The brother was not called as a witness. The brother did testify at the preliminary hearing. The defendant testified he did not try to locate him prior to he did not try to locate him prior to the trial.DPDefendant requested instructions on the nature of the possession and control of a pistol proscribed by the statute. He contends the court was required to give an instruction based upon the rule set forth in State v. Phinis, 199 Kan. 472, 430 P.2d 251. In Phinis it was said:
'Although the statute in question (K.S.A. 21-2611) does not require intent to do a prohibited act as a prerequisite for its application, (State v. Wheeler, 195 Kan. 184, 186, 403 P.2d 1015), yet the statute contemplates proof of possession and control which is more than an innocent handling of the pistol without intent to have, possess or control the same.' (p. 482)
Defendant states the instructions he requested were taken verbatim from the instructions in the Phinis trial. He contends the court erred in refusing to instruct on his theory of the case, i. e. innocent handling of the pistol. His requested instruction read as follows:
'You are instructed, members of the jury, that possession within the statute prohibiting possession of a pistol by one previously convicted of a crime does not turn upon hysical handling of the prohibited weapon alone, and if you find and believe from the evidence that defendant's handling of said weapon was an innocent one without the intent to have, possess or control said weapon, that this will constitute an exception to this statute of Kansas, and your verdict should be not guilty.'
It should be pointed out, in Phinis we were concerned with the sufficiency of the evidence. We did not examine or approve the instructions given by the trial court.
The instruction given by the trial court in the present case covering the elements of the crime charged and the nature of possession and control of a pistol proscribed by the statute, reads as follows:
'Before you can find the defendant, Carl Dennis Runnels, guilty as charged in the information, the state must prove to your satisfaction beyond a reasonable doubt the following essential elements:
'(a) That the defendant on or about May 28, 1967, in Russell County, Kansas, did wilfully have or keep a pistol in his possession with the intent to control the use and management thereof, or that the defendant did wilfully have a pistol in his control with the power and intent to guide or manage such pistol.
'(b) That at said time the defendant, Carl Dennis Runnels, had previously been convicted in this state or elsewhere of the crime of burglary.
'If you find from the evidence, beyond a reasonable doubt, each and all of the essential elements charged as set forth in this instruction, then you should find the defendant guilty as charged in the information.
'If you fail to find from the evidence, beyond a reasonable doubt, each and all of the essential elements of the offense charged in the information, as set forth in this instruction, then you must find the defendant not guilty as charged in the information.'
In State v. Ringler, 194 Kan. 133, 397 P.2d 390, it was said:
It is the duty of the trial court to instruct the jury on the law applicable to the theory of both the prosecution and the accused so far as they are supported by any competent evidence and are germane to the issues raised on the charge in the information.
K.S.A. 62-1447 provides:
Defendant's testimony given at the trial was sufficient, if believed, to support a finding he did not wilfully have or keep this pistol in his possession. It might be inferred by the jury his control of the pistol was merely an innocent handling of the same in an effort to learn what object had been placed under the front seat of his car by...
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...as far as that theory is supported by competent evidence and is germane to the issues raised by the pending charge. State v. Runnels, 203 Kan. 513, 516, 456 P.2d 16 (1969). Our Kansas Supreme Court has said that in order for an offense to be considered a lesser included offense under K.S.A.......
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...earlier decisions we concluded: 'When taken together, Phinis and Runnels (State v. Phinis, 199 Kan. 472, 430 P.2d 251, and State v. Runnels, 203 Kan. 513, 456 P.2d 16) fashion the rule that the possession proscribed by the statute is not the innocent handling of the weapon but a willful or ......
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