State v. Sexton, 54303

Decision Date14 January 1983
Docket NumberNo. 54303,54303
Citation657 P.2d 43,232 Kan. 539
PartiesSTATE of Kansas, Appellant, v. Bobby R. SEXTON, Jr., Appellee.
CourtKansas Supreme Court

Syllabus by the Court

1. All crimes in Kansas are established by legislative act. There are no common law crimes in this state, and there can be no conviction except for such crimes as are defined by statute.

2. Rules of statutory construction of a criminal statute stated and applied.

3. K.S.A. 21-3301 and 21-3302, when read together, do not include the crime of attempted conspiracy and prior to May 13, 1982, no such crime existed in the Kansas Criminal Code.

Kevin P. Moriarty, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., Dennis W. Moore, Dist. Atty., and Joseph E. Cosgrove, Asst. Dist. Atty., Olathe, were with him on the brief for appellant.

Louis S. Wexler, of Wexler, Wingfield & Zemites, Shawnee Mission, argued the cause, and William D. Wingfield and Donald L. Zemites, Shawnee Mission, of the same firm were with him on the brief for appellee.

HOLMES, Justice:

This is an appeal by the State under K.S.A. 22-3602(b)(1) from the dismissal by the trial court, on motion of the defendant at the preliminary hearing stage, of criminal charges against Bobby R. Sexton, Jr. The defendant was charged with an attempt to conspire to commit murder. The trial court found there was no such crime as attempted conspiracy and therefore dismissed the action.

There were no facts presented to the trial court and the parties have stipulated that for appeal purposes, the allegations of the information may be taken as true and are controlling. Greatly summarized, the information alleges that the defendant Bobby R. Sexton, Jr. attempted to conspire with two agents of the United States Alcohol, Tobacco and Firearms unit for the agents to murder Sexton's wife. Several meetings were held in which a price for the murder was determined and details for carrying out the murder were furnished by Sexton, including the present whereabouts of his estranged wife.

It is undisputed that the two agents were working undercover after receiving a tip from the Olathe police department that Sexton was seeking someone to murder his wife. It is also undisputed that neither of the two agents ever had any intention of entering into an actual conspiracy to murder Sexton's wife. Based upon the information secured by the USATF agents, the defendant was charged with an attempt to conspire to commit the murder of his wife. He was not charged with attempted murder nor conspiracy to commit murder and the State concedes that under the facts alleged, such charges would not lie. The sole question before this court is whether under the Kansas statutes, as they existed at the time, there was any such crime as attempted conspiracy. The trial court found that no such crime, essentially the crime of solicitation, was included in our statutes. We agree.

The State contends that the facts alleged in the information support a charge of attempted conspiracy to commit murder in violation of K.S.A. 21-3301, 21-3302 and 21-3401. K.S.A. 21-3401 defines first-degree murder. The pertinent portions of K.S.A. 21-3301 provide:

"Attempt. (1) An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.

(2) It shall not be a defense to a charge of attempt that the circumstances under which the act was performed or the means employed or the act itself were such that the commission of the crime was not possible."

K.S.A. 21-3302 provides in part:

"Conspiracy. (1) A conspiracy is an agreement with another person to commit a crime or to assist to commit a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by him or by a co-conspirator."

It appears to be the position of the State that conspiracy, unlike the crime of attempt, is a substantive crime which can be charged even when the object crime is completed, while an attempt merges with the object crime if that crime is actually consummated. As such, an attempt to commit the crime of conspiracy is a chargeable offense if the conspiracy itself is not completed. Appellant, on the other hand, makes several arguments, as pointed out in the trial court's opinion, to the effect there is no such crime as attempted conspiracy.

The learned trial judge in his order of dismissal stated:

"It is for this Court and all of our courts to uphold the law and protect the citizens of this State no matter who they might be. It is not the function of this Court to create new laws no matter how justified they appear. If this Court could create a good law today, there would be nothing to prevent this Court from creating a bad law tomorrow, and for this reason our founding fathers wisely created the separation [of] powers giving the legislature the power to make laws and the courts the power of interpreting those laws by filling in any gaps and clarifying ambiguities.

This Court finds the facts stipulated to and the information to be disgusting and repulsive. However, the buck stops here and this Court must make its determination solely upon the law.

The Court makes the following findings:

1. That for the purpose of this hearing defendant stipulates that the State could prove all of the allegations set forth in the information.

2. That there cannot be a criminal offense of attempting to commit an act which if completed was not a crime. This case is similar to State v. Crozier, 225 Kan. 120 . The Supreme Court held in that case that the acts of defendant of paying money to an individual to carry out the murder of her husband, transporting the hired individual to her husband's residence, and providing the gun and shells to shoot her husband, did not constitute the crime of conspiracy to commit murder since the person hired to commit the murder had never intended to commit murder. The Supreme Court in referring to State v. Roberts, 223 Kan. 49 , stated that an agreement, by its very nature, requires a meeting of two minds; if there is no meeting of the minds, there can be no conspiracy. In the case before this Court there was no meeting of the minds and no conspiracy to commit murder was involved. The Court finds that a person cannot be convicted of attempting to commit an act which even if committed was not a crime.

The Court further finds that the Kansas statutes categorize attempt and conspiracy under the heading of 'Anticipatory Crimes.' This Court finds that one anticipatory crime cannot be stacked or added to another anticipatory crime in order to arrive at a new crime.

The Court does not find from the facts in this case that there has been an attempted crime. For there to be an attempted crime under the statute, the Supreme Court has held that an accused must have taken steps beyond mere preparation by doing something directly moving toward and bringing nearer the crime he intends to commit. The Court cited 21 Am.Jur.2d, Criminal Law, Section 111, page 191, '... in a general way it may be said that preparation consists in devising or arranging the means for measures necessary for the commission of the offense and that the attempt is the direct movement toward the commission after the preparations are made. It has been held that even though a person intends to commit a crime, his procurement of the instrumentalities adapted to that end will not constitute an attempt to commit the crime in the absence of some further overt act ...', State v. Gobin, 216 Kan. 278 .

There is no question in the Court's mind but that the defendant, under the facts stipulated, solicited the murder of his wife, but under Kansas v. Bowles, 70 Kan. 821, 838 , the Court held, 'so long as the will of the person solicited is opposed to the corrupt conduct, there can be no attempt, in the legal sense....'...

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  • State v. Gutierrez
    • United States
    • Kansas Supreme Court
    • December 7, 2007
    ...by impulse and lack of reflection. This argument raises a question of law subject to unlimited appellate review. See State v. Sexton, 232 Kan. 539, 542, 657 P.2d 43 (1983) (function of court to determine whether statute, combination of statutes proscribes certain conduct as K.S.A. 21-3403(a......
  • State v. Lundberg
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    • Kansas Supreme Court
    • July 19, 2019
    ...of our penal statutes. United States v. Bass , 404 U.S. 336, 348, 92 S. Ct. 515, 30 L. Ed. 2d 488 (1971) ; State v. Sexton , 232 Kan. 539, 542-43, 657 P.2d 43 (1983).The appellant raised three issues for appeal. Two issues had to do with the definitions of "sale" and "offer to sell" occurri......
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    • United States
    • Kansas Court of Appeals
    • May 10, 2019
    ...are no common law crimes in this state, and there can be no conviction except for such crimes as are defined by statute." State v. Sexton , 232 Kan. 539, Syl. ¶ 1, 657 P.2d 43 (1983) ; see State v. Rodriguez , 305 Kan. 1139, 1154, 390 P.3d 903 (2017) (recognizing rule stated in Sexton ); Yo......
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    • Kansas Supreme Court
    • May 7, 2021
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