State v. Tague

• Decision Date: 08 July 1961
• Docket Number: No. 41943,41943
• Citation: 188 Kan. 462,363 P.2d 454
• Parties: STATE of Kansas, Appellee and Cross Appellant, v. Kenneth E. TAGUE, Appellant.
• Court: Kansas Supreme Court

Page 454

363 P.2d 454

188 Kan. 462

STATE of Kansas, Appellee and Cross Appellant, v. Kenneth E. TAGUE, Appellant.

No. 41943.

Supreme Court of Kansas.

July 8, 1961.

Rehearing Denied Sept. 19, 1961.

Syllabus by the Court

1. The record in an appeal in a criminal case is examined and it is held: (1) That appellant is in no position to urge to the supreme court that the trial court committed error in failing to instruct upon alleged lesser degrees of the offense charged since appellant did not request such an instruction and did not bring such matter to the attention of the trial court upon motion for new trial. (2) That the trial court committed no reversible error in the admission of evidence.

Patrick J. Warnick, Wichita, argued the cause, and Alan B. Phares, Wichita, was with him on the briefs, for appellant.

Keith Sanborn, County Atty., argued the cause, and William M. Ferguson, Atty. Gen., Robert E. Hoffman, Asst. Atty. Gen., and R K. Hollingsworth, Deputy County Atty., Wichita, were with him on the briefs, for appellee and cross-appellant.

Upon the cross appeal of the state in the above matter it is held: That when a defendant in a criminal action has been convicted of a felony, and upon the hearing prior to sentence it is shown that defendant has been previously convicted of one or more felonies all as provided in G.S.1949, 21-107a, the sentence of defendant under that section is mandatory upon the district court (State v. Ricks, 173 Kan. 660, 250 P.2d 773).

JACKSON, Justice.

The defendant, who is the appellant in this appeal, was charged in the court below in an information containing three counts. It was alleged that defendant had violated G.S.1949, 21-916, 21-915, and 41-803. After trial by jury, the defendant was convicted under sections 21-916 and 41-803, and was acquitted of violating section 21-915. The first two sections mentioned in the information constitute felony charges relating to the operation of a gambling house. Section 41-803 defines the misdemeanor of operating an 'open saloon.' It may be noted that section 21-916 specifically prohibits setting up of various and sundry gambling devices and permitting such devices to be used for gaming in a house or building under control of the defendant. The time covered by the information was from February 6, 1959 to June 12, 1959.

It was further charged that the violations of the statutes had taken place at premises referred to as the Blue Note Ballroom and Aero Club and also at the Key Club. Both of these places were located in the city of Wichita.

It should be noted that the state has filed a cross appeal in this case, but we shall deal with it after disposing of the defendant's appeal.

In defendant's abstract twelve assignments of error are made, but in his brief only three matters are argued. Therefore, under our rules, the other assignments are deemed to have been waived (State v. Owen, 161 Kan. 361, 168 P.2d 917; Ferrellgas Corporation v. Phoenix Ins. Co., 187 Kan. 530, 358 P.2d 786, and cases cited).

The first two sections of defendant's brief may be covered together. It is first argued that the trial court erred in failing to instruct the jury upon the provisions of G.S.1949, 21-934, a misdemeanor, as a lesser offense included in the two felony charges specified in the information of the state. It is then argued that the trial court should have granted a new trial because of this failure to instruct upon a lesser offense.

In discussing this question, it should be said first that defendant's competent counsel does not endeavor to mislead this court, but frankly admits that no request was made asking the trial court to instruct the jury as to any lesser offense. In fact, it was only in an amendment of the motion for new trial that any ground which could be thought to include this matter was set out in the motion. We understand, and the abstract so indicates, that the matter of lesser offenses was not argued to the trial court on the motion for new trial. However, defendant now argues the trial court erred in failing to instruct the jury upon the matter of lesser offenses. Defendant relies especially upon G.S.1949, 62-1447 which imposes the duty to instruct the jury upon 'all matters of law which are necessary for their information in giving their verdict,' and especially upon the cases of Craft v. State, 3 Kan. 450; and State v. Winters, 81 Kan. 414, 105 P. 516.

It must be noted that the Craft case involved a charge of first degree murder where defendant had killed a friend in a drunken fight and had been sentenced to death. The defendant at least argued on motion for new trial that the jury should have been instructed upon the crimes of murder in the second degree and upon the four degrees of manslaughter and may have raised the question before that time in the trial. Quite obviously, this court should and did grant the defendant a new trial.

Neither do we believe that the Winters case is authority which would show that the defendant in the case at bar has not waived any right to have instructions on lesser offenses given. In the Winters case, the defendant was convicted of assault with a deadly weapon, and argued that the jury should have been instructed upon the crime of simple assault and other lesser offenses. The court held that the defendant waived any right which he may have had in that respect. In the third paragraph of the syllabus of the Winters case will be found the following rule:

'Generally a verdict of guilty of a higher offense or degree, based upon satisfactory evidence and correct instructions relating to it, renders error in giving or refusing instructions upon inferior degrees or offenses immaterial.'

We also direct attention to the language of Mr. Justice Rousseau A. Burch in the opinion of the Winters case, 81 Kan. at page 421, 105 P. at page 518, where it is said:

'From all the decisions noted it may be concluded that the statute means what it says and should be followed; but that a duty rests on counsel for the defendant to aid and not to ambush the court, and consequently instructions should be requested covering all lesser degrees or lesser crimes involved in the main charge which the defendant desires to be considered. A request sufficient to direct the mind of the court to the subject is enough. Good instructions need not be offered, or a good theory for them formulated; and the evidence itself may point so plainly to the necessity for such instructions that no request is necessary. Generally, however, a failure to make the request waives error in failing to instruct, and generally error in failing to instruct or in giving wrong instructions, upon lesser degrees or offenses, works no prejudice when the defendant is convicted upon satisfying evidence of a higher charge under correct instructions relating to it.'

Turning now to the case at bar, it is most doubtful whether the trial court noticed the short paragraph in the amendment to the motion for new trial. Further, it is not clear that section 21-934 is a lesser degree of the same...