State v. Wilson
| Decision Date | 16 January 1987 |
| Docket Number | No. 59282,59282 |
| Citation | 240 Kan. 606,731 P.2d 306 |
| Parties | STATE of Kansas, Appellee, v. Arlene Y. WILSON, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. An information which omits one or more of the essential elements of the crime it attempts to charge is jurisdictionally and fatally defective, and a conviction of that offense must be reversed. Following State v. Jackson, 239 Kan. 463, 721 P.2d 232 (1986), and State v. Howell & Taylor, 226 Kan. 511, 601 P.2d 1141 (1979).
2. A conviction based upon an information which does not sufficiently charge the offense for which the accused is convicted is void.
3. An information must be in writing.
4. Where leave is granted to the prosecution to amend an information, the amendment must be made either (a) by filing an amended information, or (b) by striking out or writing in the pertinent matter by interlineation upon the document on file.
5. An information which does not charge any offense cannot be amended over defense objection to first charge an offense during trial.
6. When pattern jury instructions are appropriate, a trial court should use them in instructing a jury unless there is some compelling and articulable reason not to do so.
Lucille Marino, Asst. Appellate Defender, argued the cause, and Benjamin C. Wood, Chief Appellate Defender, was with her on the brief, for appellant.
Debra Barnett, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with her on the brief, for appellee.
Arlene Y. Wilson appeals from her conviction by jury trial in Sedgwick County District Court of murder in the second degree, K.S.A. 21-3402. We reverse.
The information purports to charge murder in the first degree, K.S.A. 21-3401.
In Kansas, all crimes are statutory. The elements necessary to constitute a crime must be gathered wholly from the statute. State v. Minor, 197 Kan. 296, 299, 416 P.2d 724 (1966). An information which omits one or more of the essential elements of the crime it attempts to charge is jurisdictionally and fatally defective and a conviction of that offense must be reversed. The evidence introduced at trial to show commission of the crime sought to have been charged, and the jury instruction thereon, have no bearing on this question. State v. Jackson, 239 Kan. 463, 466, 721 P.2d 232 (1986), quoting from State v. Howell & Taylor, 226 Kan. 511, 601 P.2d 1141 (1979).
Murder in the first degree is defined by K.S.A. 21-3401 as a killing of a human being committed maliciously, willfully, deliberately, and with premeditation. Here, there is no charge that the killing of Polly Stone was done maliciously, deliberately, and with premeditation. The information does not charge murder in the first degree.
Murder in the second degree is defined by K.S.A. 21-3402 as "the malicious killing of a human being, committed without deliberation or premeditation and not in the perpetration or attempt to perpetrate a felony." The information does not charge that the killing of Polly Stone was done maliciously, without deliberation or premeditation and not in the perpetration or attempt to perpetrate a felony, and thus the information does not charge murder in the second degree.
Voluntary manslaughter is defined by K.S.A. 21-3403 as "the unlawful killing of a human being, without malice, which is done intentionally upon a sudden quarrel or in the heat of passion." The information does not charge that the killing of Polly Stone was done intentionally upon a sudden quarrel or in the heat of passion. The information does not charge voluntary manslaughter.
K.S.A. 1985 Supp. 21-3404 defines involuntary manslaughter as the unlawful killing of a human being, without malice, "which is done unintentionally in the wanton commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner." The information here does not charge that the killing of Polly Stone was done "unintentionally in the wanton commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner." Clearly, it does not charge involuntary manslaughter.
Thus, this case went to trial upon an information which does not charge any degree of criminal homicide under the laws of this state. The State contends that the information was amended during trial to charge murder in the first degree. At one point the prosecuting attorney indicated a desire to amend the information. He made no motion in writing, and no oral motion on the record. He simply asked the court: "These other motions and my formal amendment to the Complaint, can we take that up before the jury tomorrow?" The trial judge responded, "I still think there needs to be something in the evidence which would justify the amendment before that is determined." Sometime later during the trial, defense counsel stated to the court, "[W]e feel that the Court should not amend the information to a premeditated murder." The prosecutor remained silent. The court then ruled, "The State's motion to amend to conform to the evidence is sustained." The State never filed an amended information; the prosecutor never stated on the record the substance of or the precise wording which the State wished to include in or strike from the information; and the prosecutor never made an amendment by interlineation. The record is silent as to exactly what change the prosecutor wished to make....
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