State v. SmithState v. Smith
- Reporters:
- , ,
- Before:
- Fatzer
The opinion of the court was delivered by
Fatzer, C. J.:
The appellant, Wayne Smith, was convicted by a jury of criminal injury to persons (
On appeal, the appellant asserts error in the sentence imposed for the conviction of criminal damage to property upon the ground the instruction given by the district court did not set out the value *866 distinction between a class E felony and class A misdemeanor, nor did the jury’s verdict specify the amount of damage done to the property.
The district court’s instruction on .the charge of criminal damage to property was as follows:
“Instruction No. 4
“The defendant is. further charged with the orime of criminal damage to property without consent. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1.] That Linda G. Smith had an interest as a tenant in the house and contents in Effingham, Kansas.
“2.] That the defendant intentionally damaged the property;
“3.] That the defendant did so without the consent of Linda G. Smith; and
“4.] That this act occurred on or about 12 July 1973 in Atchison County, Kansas.”
The jury returned a verdict finding the appellant guilty of criminal damage to property without consent. The verdict contained no statement of the value of the property nor the extent of damage done to the property. The appellant then moved the court for a finding of guilty to a lesser included offense, specifically, a misdemeanor conviction for criminal damage to1 property. The district court overruled the motion and sentenced appellant as being guilty of a class E felony. (
No objection was made by the appellant in the district court with respect to Instruction No. 4. It is a well established rule of this court that objections to the district court’s instructions will not be considered when raised for the first time on appeal unless the instruction is clearly erroneous. (State v. Wilson, 215 Kan. 28, 523 P. 2d 337.)
Was the instruction given by the district court clearly erroneous?
In charging the jury in a criminal case, it is the duty of the district court to define the offense charged, stating to the jury the essential elements of the crime, either in the language of the statute or in appropriate and accurate language of the court. (State v. Schriner, 215 Kan. 86, 523 P. 2d 703.) Moreover, K. S. A. 1973 Supp.. 21-3107 (3) provides:
“In. cases where the crime charged may include some lesser crime it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced, even though such instructions have not been requested or have been objected to.”
*867 Regarding this statute, in State v. Warbritton, 211 Kan. 506, 506 P. 2d 1152, we said:
“The meaning of the statute is clear and specific in nature and where it is applicable must control over the general provisions ofK. S. A. 1972 Supp. 22-3414 (3) pertaining to the requirement of an objection to the giving or failure to give an instruction.” (1. c. 508.)
Criminal damage to property is defined by
“(1) Criminal damage to property is by means other than by fire or explosive:
“(a) Willfully injuring, damaging, mutilating, defacing, destroying, or substantially impairing the use of any property in which another has an interest without the consent of such other person; or
(b) Injuring, damaging, mutilating, defacing, destroying, or substantially impairing the use of any property with intent to injure or defraud an insurer or lienholder.
“(2) Criminal damage to property is a class E felony if the property is damaged to the extent of fifty dollars ($50) or more. Criminal damage to property is a class A misdemeanor if the property damaged by such acts is of the value of less than fifty dollars ($50) or is of the value of fifty dollars ($50) or more and is damaged to the extent of less than fifty dollars ($50).”
The statute is a consolidation of 24 prior laws dealing with offenses against property resulting in damage. (11 Vernons Kan. Stat. Anno., Criminal Code [Spring & Ryan],
For the state to convict a person of a felony for criminal damage to property, it is required to prove 1) an act or impairment in using the property, done without consent of the owner or person having an interest in the property; 2) the value of the property was more than $50, and 3) the amount of damage done to the property was $50 or more.
*868 In the instant case, the instruction given by the district court is identical to that given for the crime of criminal damage to property without consent found in PIK Criminal, Sec. 59.23. Roth instructions speak only to the act or impairment in using another’s property— the first element stated above. The court should have included as a part of its instructions PIK 68.11 requiring the jury to set forth in its verdict the value of the property damaged and the amount of damage done to the property.
As indicated, the verdict did not state the value of the property damaged or the amount of damage done to the property, nor did Instruction No. 4 require the jury to make such findings. The jury found the appellant guilty of criminal damage to property without the consent and under the circumstances prevailing, we are of the opinion the record is sufficient to support a conviction for the lesser included misdemeanor offense, but is insufficient to support a felony conviction for criminal damage done to property without consent. That part of the judgment convicting and sentencing the appellant of a felony for criminal damage to property is reversed and the sentence is set aside.
(State v.
Towner, 202 Kan. 25, 446 P. 2d 719;
It is so ordered.