State v. Ware

• Court: Kansas Supreme Court
• Writing for the Court: PRICE
• Citation: State v. Ware, 201 Kan. 563, 442 P.2d 9 (Kan. 1968)
• Decision Date: 08 June 1968
• Docket Number: No. 45102,45102
• Parties: STATE of Kansas, Appellee, v. Thomas Raymond WARE, Appellant.

Page 9

442 P.2d 9

201 Kan. 563

STATE of Kansas, Appellee, v. Thomas Raymond WARE, Appellant.

No. 45102.

Supreme Court of Kansas.

June 8, 1968.

Rehearing Denied July 12, 1968.

Syllabus by the Court

The firearms statute (K.S.A. 21-2611) provides that it shall be unlawful for one who has previously been convicted of one of the offenses enumerated therein (one of which is felonious assault) to own a pistol or to have or keep a pistol in his possession or under his control. Violation of the statute is declared to be a felony and the penalty provided is imprisonment in the penitentiary for not to exceed five years. Defendant was convicted under the statute-the previous conviction relied on as a necessary element and ingredient of the offense charged being a conviction of felonious assault in the state of Missouri. Because of such previous conviction the trial court found that the instant conviction was a second conviction of felony and, under the first provision of the habitual criminal statute (K.S.A. 21-107a) which declares that every person convicted a second time of felony shall be confined in the penitentiary not less than double the penalty of the second conviction-sentenced defendant to confinement in the penitentiary for a period not exceeding ten years.

Held: The previous conviction of felonious assault which was relied on as a necessary element and ingredient in order to constitute the offense under the firearms statute may not be used and relied on to invoke the habitual criminal statute.

Edward M. Boyle and W. C. Jones, Olathe, argued the cause and were on the brief for appellant.

James A. Wheeler, Asst. County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., James W. Bouska, County Atty., and Bill E. Haynes, Asst. County Atty., were with him on the brief for appellee.

The opinion of the court was delivered by

PRICE, Chief Justice.

Defendant appeals from his conviction and sentence under K.S.A. 21-2611, which makes it unlawful for one who has previously been convicted of one of the offenses enumerated therein, to own, have or keep a pistol in his possession or under his control.

In his brief defendant urges ten grounds for reversal-one of which was abandoned at oral argument. Eight of the remaining grounds relate to alleged errors and irregularities before or during the trial. We have examined each of those eight complaints and find all to be without merit. In no manner may it be said from the record that defendant's substantial rights were in any way prejudicially affected. The nature of the case-and of the contentions made-is such that discussion of the same not only would serve no useful purpose but would unnecessarily encumber the official reports with irrelevant and immaterial matters having nothing to do with what we consider to be the only meritorious contention in the case.

In April, 1963, defendant was convicted in the circuit court of Jackson County, Missouri, of the offense of felonious assault.

K.S.A. 21-2611-for a violation of which defendant was prosecuted and found guilty by a jury-provides

'It shall be unlawful for any person who has previously been convicted in this state or elsewhere of committing * * * felonious assault, * * * to own a pistol, or to have or keep a pistol in his possession, or under his control. Any person violating this section shall be deemed guilty of a felony, and upon conviction shall be imprisoned in the state penitentiary not to exceed five (5) years * * *.'

In the case at bar the possession and control of the pistol by defendant was alleged and established to have been on or about December 5, 1965.

The habitual criminal statute of this state (K.S.A. 21-107a) provides that

'Every person convicted a second time of felony, the...