Wisner v. State, 47588

• Decision Date: 01 March 1975
• Docket Number: No. 47588,47588
• Citation: 216 Kan. 523,532 P.2d 1051
• Parties: Danny Joe WISNER, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 1051

532 P.2d 1051

216 Kan. 523

Danny Joe WISNER, Appellant, v. STATE of Kansas, Appellee.

No. 47588.

Supreme Court of Kansas.

March 1, 1975.

Syllabus by the Court

1. In a criminal action it is a denial of due process to convict a defendant of an offense not charged in the information or indictment.

2. A lesser offense is considered a lesser included offense under K.S.A. 21-3107(2)(d) when all elements necessary to prove the lesser offense must be present to establish the elements of the greater offense.

3. Rape is not a lesser included offense of aggravated kidnapping.

4. It is error to instruct on the offense of rape under an information which only charges the defendant with aggravated kidnapping.

Jay H. Vader, Kansas City, argued the cause and was on the brief, for appellant.

Dennis L. Harris, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., Nick A. Tomasic, Dist. Atty., and David P. Mikesic, Asst. Dist. Atty., were on the brief, for appellee.

OWSLEY, Justice:

This is an appeal from an order of the district court denying defendant Danny Joe Wisner's motion for post-conviction relief, filed pursuant to K.S.A. 60-1507. Defendant was convicted by a jury of rape in violation of K.S.A. 21-3502, and sentenced to a term of not less than five years nor more than twenty years.

In the information filed by the state, defendant was charged with the crime of aggravated kidnapping. After presentation of the evidence the trial court instructed the jury that the crime of rape was a lesser included offense of the crime of aggravated kidnapping. The jury returned the verdict of guilty to the offense of rape.

Defendant rightfully contends that an accused is denied due process of law when he is convicted in a criminal action based upon a charge not made in the information. Procedural due process requires that a defendant have notice of a specific charge so that he has an opportunity to defend himself and be heard on trial of the issues raised by that charge. (Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644.) In a criminal action the information or indictment is the jurisdictional instrument upon which the accused stands and it follows that a judgment of conviction for an offense not charged in the information is void for lack of jurisdiction of the subject matter. (State v. Minor, 197 Kan. 296, 416 P.2d 724; DeJonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278.)

The constitutional right of the criminal defendant to be given notice of the charges against him does not prohibit the conviction of one found guilty of a lesser included offense of the crime charged in the information. It is reasoned that in the case of an included crime, the notice and charge on the greater offense as a matter of law includes notice of the included offense. (Geitner v. State, 59 Wis.2d 128, 207 N.W.2d 837.)

In accordance with these principles, K.S.A. 21-3107(2) permits a defendant to be convicted of either the crime charged or of an included crime, but not both. A lesser included crime is defined in 21-3107(2) as any of the following:

'(a) A lesser degree of the same crime;

'(b) An attempt to commit the crime charged;

'(c) An attempt to commit a lesser degree of the crime charged; or

'(d) A crime necessarily proved if the crime charged were proved.'

In overruling defendant's motion to set aside and vacate the judgment, the district court relied upon provision (d) of that subsection to support its conclusion that the trial court did not err in instructing the jury that rape is a lesser included offense of aggravated kidnapping. In so doing, we conclude the district court misconstrued the applicable statutory provision and prior cases defining a lesser included offense.

A trial court's duty to instruct as to any lesser included offense is spelled out in K.S.A. 21-3107(3). That subsection merely codified the existing law as expressed in State v. fouts, 169 Kan. 686, 221 P.2d 841. In substance, it provides the trial court has a duty to instruct the jury as to all lesser included crimes of which the accused might be found guilty 'under the information or indictment and upon the evidence adduced.'

Based on these statutory directives the state argues the trial court was justified in fuling that rape is a lesser included offense of aggravated kidnapping. The state contends the controlling factor in construing 21-3107(3) is the consideration of the evidence adduced at trial, rather than the elements of the charge in the information or indictment. The state cites the case of State v. Brown, 181 Kan. 375, 312 P.2d 832, for the proposition that forcible rape itself constitutes bodily harm. This being true, it argues the reference to bodily harm in the aggravated kidnapping charge necessarily refers to rape. In effect, ...