*1 46,854 No. Ingram, Appellee. L. Kansas, Daniel Appellant, State 1148) (506 P. 2d Opinion 1973. filed March cause, argued attorney, deputy county Hollingsworth, chief B. K. Peters, attorney, Sanborn, county and Ted Miller, attorney general, Keith Vern appellant. attorney, for county the brief
deputy were on Wichita, argued Cox, the cause and Rumsey, Rumsey & Richard H. appellee. on the brief for the delivered the court was opinion re- state on question Harman, appeal C.: This is indecent liberties taking the offense of in a served with a child. erred in refusing the trial court raised whether
The question and abetting. on aiding an instruction the jury to submit to the basis of prose- which is information In a single-count cution it was charged that one Dennis M. Daniel L. Ingram, herein, the defendant-appellee fondled and touched the person of a year either, fourteen old girl who was not the spouse *2 with intent to arouse and satisfy the sexual desires of and Glover appellee.
Evidence adduced at trial in support showed charge that on in the afternoon question the victim and another girl were in driven a station to a rural wagon Sedgwick area. The county girls were at accompanied hy least four (and possibly more) young men, Glover and including There appellee. conversation occurred in which young men told the victim she would have to lose her virginity later. When the sooner or victim was not persuaded that this moment had propitious arrived and she should respond occasion, voluntarily youths her, to grabbed forcibly re- her and moved shorts underclothing put her on her back in the of the station held her wagon. Appellee rear legs arm, left sufficient to latter with force bruise it. Others of the youths were in the assistance venture. lending The victim was screaming. removed his trousers attempted to lie on top of the girl. her Another of vagina. He touched the boys touched her breasts. not did touch her on except the arm and Appellee legs. group in further desisted advances apparently immediately after Glover although to lie on her attempted appellee wanted to go on and “convinced” one of the other boys had to be to stop. all conclusion of the evidence the At the prosecution requested, refused give, trial court to but the following instructions: “No. 6 state, anyone under are instructed that the laws of this “You counsels, who any or others in crime, or another the commission of aids assists hy either advising assisting counseling, any conspiring, or in preparation manner in the equally guilty completion actually thereof is with the one committing or regard participation to the extent of their guilty without crime is of such himself, though assistance, without he had crime as committed the crime. presence person way counsels, of a who in no “The mere aids or assists by conspiring, of a counseling, commission crime advising others or preparation any completion assisting or manner thereof does not make guilty person of the crime.” such appellee guilty found not and this The jury appeal ensued. is the the court’s propriety issue refusal to give sole requested in- No. 6. struction it might appear,
At first blush inasmuch as no other that aiding abetting given, on the refusal was improper. in all matters instruct the duty a trial has the Certainly v. 199 Kan. Coltharp, it reach a verdict necessary (State of law for 598, 2d And K.S.A. 1972 21-3205 part 433 P. 418). provides: “Liability responsible (1) person criminally for crimes another. A of another if he hires, aids, advises, intentionally abets,
a crime committed procures or the other to commit the crime. counsels charged “(3) person A under this section with convicted liable be although alleged directly person committed the act crime to have constituting capacity crime not been or has lacked criminal or has convicted acquitted degree or has been convicted some other crime or been on act.” other crime based the same some taking that indecent liberties with a child It cannot doubted an aider participation by is an offense susceptible abettor Jackson, 795, 279, commission. In State 443 P. 2d its 219, 1019, U. cert. denied 394 S. L. Ed. 2d 89 S. Ct. the appel *3 and forcible In robbery rape. lant was convicted of the holding convictions, sufficient to the this support evidence court stated: charged, aids an “One who and abets in the commission of offense be though principal. a and convicted as were tried he The evidence was the persons young that there seven in an automobile—five men and effect were automobile, juveniles. young One of men stood in front of victims’ two the the guest’s two stood on the side two accosted the driver. After the driver appellant appellant knocked down the took his watch billfold. The was glove lady compartment young being raped was searched the while the appellant lights out kicked the back seat of the automobile. tore out prevent leaving the of vehicle to the victims from under hood the the wires (pp. 799-800.) help.” of the crime for the scene then, it would the state appear At this entitled to the point, as each instruction inasmuch action is entitled party requested his theory with reference to of the case jury the instructed to have by evidence the instruction is theory supported is such where touched appellee was evidence the victim framed. There properly at time when arm or a others were legs held her the by he in that K. S. of A. 1972 meaning the her within touching person in part provides: which 21-3503(1) (1) liberties a child is en- child. Indecent with liberties with a “Indecent age following a child under the of sixteen
gaging of acts with in either the spouse years of the offender: (16) is the who not person touching of- Any fondling of the of either the child or the “(b) or satisfy or to to arouse the sexual with intent done or submitted to fender the offender or both.” or of either child desires However, isit also that fundamental of propriety instructions to a be gauged whole, is to their as a by consideration each all in with other instructions in the case conjunction Ad (State v. 640, 472 P. 2d dington, 225). other only given respecting the ele-
ments of the offense or its charged commission any way was 2, as instruction No. follows: charged “The defendant with the crime of indecent liberties with a child. guilty. pleads not The defendant charge, following proved: “To each must claims establish person That defendant of [the victim] “1. touched with intent satisfy defendant, Ingram; or to the sexual arouse desires Daniel L. age years victim] “2. child [the That was then a under the and not defendant; spouse June, day act Sedg- “3. That this occurred on or about the 9th County,
wick Kansas.” The record reveals no to this objection instruction and no request instructions any further the elements of respecting the alleged manner offense or the of its commission. The remainder of the instructions of a routine simply were nature appropriate to any criminal case. we see jury trial in a Thus that the instructions in that requested, as well as there was no mention given, of Glover if his any, or of the conduct. significance, Instruction No. 2 did not conform to information upon which the prosecution was it omitted the fondling aspect based that of the charge and simply touching a referred to with appellee intent to arouse or satisfy his sexual desires. This instruction own then treated appellee as indeed, say so, we cannot principal improperly inasmuch there touched the appellee was evidence with girl the requisite or his own satisfying intent sexual (arousing desires) and con- have been so convicted. ceivably might he *4 of on problem To add to the confusion the possible part of the instruction No. 6 was in the abstract jury requested the while in- 2 was framed in terms No. and no other specific struction in general offense or abstract the terms. defined Instructions that abstract statements of principles of law simply are under some difficult or confusing for a to jury circumstances apply to the case. a We think that facts of could have been particular the situa- instruction, requested tion here if the without its better integration 2, given. No. had been with instruction The difficulty might well concerning intent —what act have arisen was done with intent to whom, of Glover or appellee? desires the sexual satisfy arouse or given of the instructions framework cannot that within the say We all, court erred in clearly the trial by the jury accepted to instruction. to the failing give requested sustained. The is not appeal by
approved the court. trial has the judge responsibility The dissenting. J., Fromme, the accused and the interests rights of both the safeguarding adversary justice. of criminal in the administration justice of of the the trial judge does not relieve of the proceedings nature initiative, at all times appropriate his own of on obligation raising manner, matters which may significantly an appropriate of only purpose the trial. a just determination promote has estab- whether the trial is to determine a criminal required by as law. Stan- (ABA accused the the guilt lished of the Trial [June, The Function Justice, of Criminal Judge dards Keehn, 851, 765, 1.1; v. 118 Pac. 1972], see also State § Bean, 373, 600.) 295 P. 2d Kan. State v. trial duty it is the court to instruct In a criminal action the theories of the prose- to both applicable law jury on by so far are they supported any the accused cution and given must be germane evidence. The instructions to competent in the information and raised limited by charge the issues Hamrick, evidence. (State to those issues some supported 854; Kan. 479 P. 2d K.S.A. 1972 22-3414 [3].) an may by Under the law of this state accused information be committed crime having with another as when charged along his it is the crime was to only the ex- apparent participation aiding tent of other. This assisting the was case. present state instruction on requested assisting When the aiding case the trial crime court obligated and, necessary, some such instruction if give to change the instructions of the court in all particulars other necessary fairly law. juiy of the apprise
This was not case since present done instruction No. 2 specifically limited instruction to Ingram way there was no could have found Ingram guilty aiding Glover in the act. assisting When requested instruction No. 6 was submitted state the trial court had a duty
give such an instruction and to make in the other any changes instructions so when read a whole they would be applicable to the theories of both the the accused.
The appeal by the state should be sustained. J., joins in the foregoing dissenting opinion. Schroeder,