State v. MansState v. Mans
- Reporters:
- , ,
- Before:
- Kaul
The opinion of the court was delivered by
Kaul, J.:
The defendant, Robert B. Mans, was convicted by a jury of aggravated assault (
Between 9 and 10 p. m. on July 28, 1971, a number of rounds of .22 calibre rifle bullets were fired from inside a 1959 Chevrolet
On appeal defendant contends the evidence was insufficient to sustain the jury’s verdict and asks this court for a judgment for discharge. Defendant аlso raises numerous trial errors.
With respect to the sufficiency of the evidence, defendant argues that intent to do bodily harm to someone was not shown. Our consideration of this point is governеd by the familiar rule that in reviewing a criminal conviction on appeal, the evidence is to be viewed in the light most favorable to the state. (State v. Darling, 208 Kan. 469, 493 P. 2d 216; State v. Thomas, 155 Kan. 374, 125 P. 2d 375; and State v. Davis, 106 Kan. 527, 188 Pac. 231.) Concerning intent, in State v. Gatewood, 169 Kan. 679, 221 P. 2d 392, we said:
“Intent is a state of mind existing at the time a person commits an offense. If intent must have definite and substantive proof it would be almost impossible to convict, absent facts disclosing a culmination of the intent. The mind of an alleged offender, however, may be read from his acts, conduct and inferences reasonably to be drawn therefrom. . . .” (p. 684.)
In State v. Decker, 207 Kan. 374, 485 P. 2d 171, we held:
“In a criminal action it has been held a person is presumed to intend the natural and probable сonsequences of his voluntary and deliberate act, and if the commission of an unlawful act is proved, it will be presumed that such act was done with criminal intent.” (Syl. ¶ 1.)
In the instant case there was evidenсe that defendant had driven past the Shugart house at least once prior to the shooting. At the time of the shooting, lights were burning and an automobile was parked in the driveway. We believe the jury had ample evidence to conclude that defendant knew or should have known that Donna Shugart or someone was in the house.
In view of what has been said defendant’s contention that he
Defendant strenuously argues the trial court erred in directing the state, after it hаd rested, to xeopen its case to present testimony relating to the offense of criminal damage to property as defined in
Before submitting the case to the jury the trial сourt heard further arguments of counsel and finally concluded that criminal damage to property was not a lesser included offense. The court announced that the instruction on this point would be removed from the instructions, the evidence stricken, and the jury admonished accordingly.
The state concedes error, but says it was cmed by the court’s subsequent action in striking the evidence and admоnishing the jury; and further that in any event the matter may be written off as “harmless error.” Defendant argues, on the other hand, that the action of the trial court amounted to an invasion of defendant’s constitutional right to a fair trial. We do not believe the error rises to constitutional stature, thus, requiring a conclusion of harmless
We shоuld give brief attention to one other point of error raised. In his direct examination by the state, police officer Sichley used notes to refresh his memory. The record indicates that the nоtes used by officer Sichley were in the nature of “field notes” made by him during the course of his investigation. Sichley also testified that he made and filed a report compiled from his field notes. Defendant’s counsel requested that he be allowed to examine the documents prior to his cross-examination of Sichley. The trial court denied defendant’s request to see the field notes and, althоugh granting permission to inspect the report, defendant’s counsel was directed to proceed forthwith with his cross-examination of Sichley; the court suggesting that counsel could examine the report at the next recess. Defendant’s counsel contends that as a result it was impossible to conduct a meaningful cross-examination of the witness not having prior access to the notes and report.
This court has long recognized the principle that generally the opposing party or his counsel has the right to inspect papers used by a witness for the purpose of refreshing his memory upon matters as to which he is testifying.
(State v. Jones,
202 Kan. 31, 446 P. 2d 851;
State v. Oswald,
197 Kan. 251, 417 P. 2d 261; and
Railroad Co. v. Hays,
8 Kan. App. 545, 54 Pac. 322, 125 A. L. R. 192.) We have
“A police officer called by the state to testify on direct examination as to facts revealed by his investigation of an alleged crime is a witness within the meaning ofK. S. A. 1972 Supp. 22-3213(2) and the defendant is entitled to the production of any statement or report made by the officer in the possession of the prosecution relating to the subject matter of the witness’ testimony.” (Syl. ¶ 2.)
Applying what was said and held in Stafford to the instant case, any rеport made by officer Sichley, relating to his testimony and in the possession of the prosecution, should have been made available for inspection by defendant’s counsel before he was required to proceed with his cross-examination of the witness. The record discloses that defendant made no effort to recall officer Sichley after his report was finally made аvailable to defendant’s counsel, thus, whether substantial prejudice is shown is questionable. Even though the error on this point, standing alone, would not warrant reversal, nevertheless, when considered together with other errors, it lends cumulative force to our conclusion the defendant did not receive a fair trial.
No matter how guilty a defendant may be, or how strong and convincing the evidence mаy be against him, he is, nevertheless, entitled to a fair and impartial trial. (State v. Taylor, 198 Kan. 290, 424 P. 2d 612; State v. Bean, 179 Kan. 373, 295 P. 2d 600; and State v. Winchester, 166 Kan. 512, 203 P. 2d 229.) From the record before us we are unable to declare that the substantial rights of the defendant have not been prejudiсed.
The conclusion we have reached makes it unnecessary for us to consider other alleged errors.
For reasons set forth, the judgment of the trial court is reversed and this case is remanded with directions to grant the defendant a new trial.