State v. Wheeler, 44023

• Decision Date: 10 July 1965
• Docket Number: No. 44023,44023
• Citation: 403 P.2d 1015,195 Kan. 184
• Parties: STATE of Kansas, Appellee, v. Richard WHEELER, Appellant.
• Court: Kansas Supreme Court

Page 1015

403 P.2d 1015

195 Kan. 184

STATE of Kansas, Appellee, v. Richard WHEELER, Appellant.

No. 44023.

Supreme Court of Kansas.

July 10, 1965.

Syllabus by the Court

The record in a criminal action prosecuted under the provisions of K.S.A. 21-2611 is examined, and it is held: No reversible error was committed by the district court (1) by its failure during the trial to order an inquiry on its own initiative concerning the defendant's sanity or mental condition to comprehend his position or make his defense; (2) by its interrogation of the defendant during trial; (3) by its failure to instruct the jury as to the defendant's state of intoxication as affecting his mental capacity at the time of the alleged offense, and (4) by its approval of the verdict of guilty and in overruling the defendant's motion for a new trial.

Harold Pfalzgraf, Wellington, argued the cause for appellant.

Charles E. Watson, County Atty., Wellington, argued the cause, and Robert C. Londerholm, Atty. Gen., and Charles N. Henson, Asst. Atty. Gen., Topeka, were with him on the briefs for appellee.

FATZER, Justice.

The defendant, Richard Wheeler, was found guilty by a jury of unlawful possession of a pistol pursuant to the provisions of G.S.1961 Supp., 21-2611 (now K.S.A. 21-2611), and was sentenced to confirement as an habitual criminal.

After the conviction and imposition of sentence, the defendant indicated his desire to appeal. Instead of the court appointing the attorney who tried the case, it appointed The Honorable John A. Potucek to represent the defendant on appeal. Following Mr. Potucek's election as judge of the district court of the twenty-fifth judicial district, Mr. Harold Pfalzgraf consented to argue the case in the Supreme Court as a personal courtesy to Judge Potucek. The abstract and briefs recite the factual situation, and those pertinent to the appeal follow.

On November 21, 1963, police officers acting on information, apprehended the defendant operating his automobile in an erratic manner. He was arrested for driving while under the influence of intoxicating liquor. A subsequent search disclosed an open bottle in the vehicle and a pistol on his person underneath his belt and shirt.

We need not relate the facts pertaining to the liquor offense, but suffice it to say he entered a plea of guilty and a fine and jail sentence were imposed. There was no appeal from that conviction.

On January 2, 1964, a complaint was filed, charging the defendant with the unlawful possession of a firearm having a barrel less than twelve inches long after having previously been convicted of grand larceny in the state of Oklahoma. (K.S.A. 21-2611.)

At the trial on April 15, 1964, several witnesses testified, but we confine our discussion to the testimony of the defendant. He testified he served ten years in his country's service, part of that time as a tail gunner in the Army Air Force Bomber Group during World War II, and that he was the holder of two Purple Hearts, some air medals and many other citations. He was discharged from the service because of psychological problems and has received some psychiatric treatments. He testified he was an alcoholic and drank to overcome mental anxiety, however, he had drunk only one time since his release from prison in March, 1963. He further testified that he was to make application for treatment at the Larned State Hospital following the serving of the sentence for driving while under the influence of intoxicating liquor.

The defendant acknowledged two prior convictions for felonies, one for grand larceny of an automobile in Oklahoma and another for concealing mortgaged property in Kansas.

After completion of his cross-examination by the state, the following colloquy occurred between the court and the defendant:

'Court: Is this your gun? A. That's the gun I bought, yes, sir. Court: Did drinking have anything to do with your carrying this gun? A. Yes, if I hadn't been drinking I wouldn't have had the gun. Court: When did you buy the gun? A. I bought it about one o'clock the afternoon of the 21st of November. Court: When did you start drinking? A. About ten o'clock that morning. I took my stepdaughter to Wichita and while I was up there I started drinking and I bought this gun. Court: You weren't so drunk you didn't know what you were doing, were you? A. I don't think a half pint would make anybody drunk. I think I was in an emotional state,--I couldn't reason with myself.'

At the close of all the evidence, the district court instructed the jury in writing and it returned a verdict of guilty as charged.

Following the overruling of his motion for a new trial, the defendant was sentenced under the provisions of the habitual criminal statute (G.S.1949, 21-107a, now K.S.A. 21-107a) to confinement at hard labor in the Kansas State Penitentiary for a term of not less than fifteen years.

The defendant contends the district court erred in failing to instruct the jury as to the defendant's state of intoxication as affecting his mental capacity at the time of the alleged offense; that it abused its discretion in conducting a cross-examination of the defendant, thereby assuming the position of an advocate, and in failing to stop the proceeding on its own initiative and make inquiry as to the mental condition of the defendant.

In this jurisdiction we follow the established principle of law that a defendant's voluntary intoxication does not relieve or excuse him of responsibility for his acts. (State v. Guthridge, 88 Kan. 846, 129 P. 1143; Richardson v. Business Men's Protective Ass'n, 129 Kan. 700, 284 P. 599.)

An intoxication instruction is essential only when intent is a necessary element of the crime. Intoxication may be used to indicate a state of mind whereby an accused, because of his intoxication, is unable to formulate an intent. However, the statute in question (K.S.A. 21-2611) does not require intent as a prerequisite for its application. It merely requires that the accused have a previous conviction for certain specified offenses among which is grand larceny and ownership, possession or control of a pistol having a barrel less than twelve inches long. (K.S.A. 21-2610 and 21-2611.)

In State v. Anderson, 172 Kan. 402, 241 P.2d 742, we fully discussed the district court's function in giving instructions, and said:

'While it is true that it is encumbent upon a trial court to instruct the jury upon all matters of law necessary for their information in giving their verdict G.S.1949, 62-1447; State v. Smith, 161 Kan. 230, 167 P.2d 594, a party who desires an instruction upon some particular question not included in the general charge should request that the trial judge give such instruction. Where no such request is made and the case is fairly presented to the jury, he cannot afterwards complain that the instruction was not given. The omission to instruct the jury upon some particular phase of the case for which no request was made is not error. Skaer v. American Nat'l Bank, 126 Kan. 538, 540, 268 P. 801, and cases therein cited; State v. Rook, 42 Kan. 419, 22 P. 626; State v. Pfefferle, 36 Kan. 90, 12 P. 406; State v. Jones, 137 Kan. 273, 20 P.2d 514; State v. Nelson, 68 Kan. 566, 75 P. 505. * * *' (1. c. 406, 407, 241 P.2d 745.)

For additional decisions supporting this authority, see: Jukes v. North American Van Lines, Inc., 181 Kan. 12, 23, 309 P.2d 692; State v. Cushinberry, 180 Kan. 448, 452, 304 P.2d 561; State v. Inverarity, 150 Kan. 160, 92 P.2d 45; State v. Brown, 145 kan. 247, 65 P.2d 333.

We have examined the district court's instructions to the jury, and while they were general in form, none were erroneous as a matter of law. The defendant concedes he made no request for an additional instruction with respect to his state of intoxication, nor did he make any objection to the court's instructions to the jury. No error can be predicated upon omission to give any particular instruction when no request therefor was made. (State v. Jones, 187 Kan. 496, 357 P.2d 760, 88 A.L.R.2d 1269.) Moreover, intoxication had no relationship to the issue before the district court.

The defendant argues that when the district court examined him, it assumed the position of advocate, thereby creating prejudice to his substantial rights by spoken word, facial expression and tone of voice.

This court has consistently followed the rule stated in State v. Keehn, 85 Kan. 765, 118 P. 851, where it was said:

'The purpose of a trial in a criminal case is to ascertain the truth of the matters charged against the defendant, and it is a part of the business of the trial judge to see that this end is attained. He is a vital and integral factor in the discovery and elucidation of the facts, and, whenever in his judgment the attorneys are not accomplishing the full development of the truth it is not only his right, but it is his duty, to examine and cross-examine the witnesses. The presumption is that this liberty will be honorably and impartially exercised in the interest of justice, and in this case it was not abused by the trial judge.' (Syl. p4.) (Emphasis supplied.)

Our later decisions are in accord with this rule. (State v. Miller, 127 Kan. 487, 274 P. 245; State v. Jones, supra.)

Defendant relies upon State v. Winchester, 166 Kan. 512, 203 P.2d 229 and State v. Bean, 179 Kan. 373, 295 P.2d 600, to support his...