21-101. Title and construction. This code is called and may be cited as the Kansas Criminal Code.
COMMENT
Presently K.S.A. 21-3101. No change is recommended. Chapter 21 provides principles of criminal liability, prohibited conduct and sentencing provisions. Chapter 22 provides procedural rules to govern proceedings in criminal cases.
21-102. Jurisdiction. The district courts of this state shall have exclusive jurisdiction to try all cases of felony and other criminal cases.
COMMENT
Presently K.S.A.
22-2601 with the phrase “under the laws of the state of
21-103. Scope and
application. (1) No conduct
constitutes a crime against the state of
(2) Unless expressly stated otherwise, or the context otherwise requires, the provisions of this code apply to crimes created by statute other than in this code.
(3) This code does not affect the power of a court to punish for contempt or to employ any sanction authorized by law for the enforcement of an order or a civil judgment or decree.
(4) This code has
no application to crimes committed prior to its effective date. A crime is
committed prior to the effective date of the code if any of the essential
elements of the crime as then defined occurred before that date. Prosecutions
for prior crimes shall be governed, prosecuted and punished under the laws
existing at the time such crimes were committed.
COMMENT
Presently K.S.A. 21-3102. Deleted is the unnecessary reference regarding ex post facto application of crimes in the criminal code.
21-104. Invalidity
of part of act. If any
provision of this act including any amendment or its
application to any person or circumstance is held invalid, or application
to any person is held invalid, the remainder of the act or the application of
the provision to other persons or circumstances is not affected.
COMMENT
Presently K.S.A. 21-3111. The only change is one of clarification and not substance.
21-105. Severability. If any provisions of this act or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provisions or application and, to this end, the provisions of this act are severable.
COMMENT
Presently K.S.A. 21-3112. No change is recommended.
21-106. Civil remedies preserved. This code does not bar, suspend or otherwise affect any civil right or remedy, authorized by law to be enforced in a civil action, based on conduct which this code makes punishable; and the civil injury caused by criminal conduct is not merged in the crime.
COMMENT
Presently K.S.A. 21-3103. No change is recommended.
21-107. Territorial applicability. (1) A person is subject to prosecution and punishment under the law of this state if:
(a) He commits a crime wholly or partly within this state; or
(b) Being outside the state, he counsels, aids, abets, or conspires with another to commit a crime within this state; or
(c) Being outside the state, he commits an act which constitutes an attempt to commit a crime within this state.
(2) An offense
crime is committed partly within this state if either an act which is a
constituent and material element of the offense crime, or the
a proximate result of such act, occurs within the state. If the body
of a homicide victim is found within the state, the death is presumed to have
occurred within the state. [Reporter’s
note: why not substitute language from St. v. Grissom, 251 Kan. 851, “A
crime is committed partly within this state and an act occurring within the
state is a substantial and integral part of an overall continuing crime plan
and undertaken in partial execution of the plan.]
(3) A crime which is based on an omission to perform a duty imposed by the law of this state, is committed within the state, regardless of the location of the person omitting to perform such duty at the time of the omission.
(4) It is not a
defense that the defendant's conduct is also a crime under the laws of another
state or of the
(5) This state includes the land and water and the air space above such land and water with respect to which the state has legislative jurisdiction.
COMMENT
Presently K.S.A.
21-3104. “Offense” was changed to
“crime” in the interests of consistency throughout the code. Also changed was “a proximate result” to “the
proximate result.” The committee
believes this linguistic change makes clear the code applies when some, but not
all victims of a crime are within the state of
21-108. Crimes defined; classes of crimes. A crime is an act or omission defined by law and for which, upon conviction, a sentence of death, imprisonment or fine, or both imprisonment and fine, is authorized or, in the case of a traffic infraction or a cigarette or tobacco infraction, a fine is authorized. Crimes are classified as felonies, misdemeanors, traffic infractions and cigarette or tobacco infractions.
(1) A felony is a crime punishable by death or by imprisonment in any state correctional institution or a crime which is defined as a felony by law.
(2) A traffic infraction is a violation of any of the statutory provisions listed in subsection (c) of K.S.A. 8-2118 and amendments thereto.
(3) A cigarette or tobacco infraction is a violation of subsection (m) or (n) of K.S.A. 79-3321 and amendments thereto.
(4) All other crimes are misdemeanors.
COMMENT
Presently K.S.A. 21-3105. No change is recommended.
21-109. Time limitations.
(1) A prosecution for murder may be commenced at any time.
(2) Except as otherwise provided in this statute, prosecutions for other crimes must be commenced within five years after it is committed.
(3) If the five year period for prosecution has expired, a prosecution may nevertheless be commenced for:
(a)
any crime a material element of which is either
fraud or a breach of fiduciary obligation within one year after discovery of
the crime by an aggrieved party or by a person who has legal duty to represent
an aggrieved party and who is himself not a party to the offense, but in no
case shall this provision extend the five-year period of limitation by more
than five additional years; or
(b)
any person felony within one year from the date on
which the identity of the suspect is conclusively established by DNA
testing. For purposes of this section,
“DNA” means deoxyribonucleic acid.
(4) The period within which a prosecution must be commenced shall not include any period in which:
(a) the accused is absent from the state;
(b) the accused is concealed within the state so that
process cannot be served upon the accused;
(c) the fact of the crime is concealed
(d) a prosecution is pending against the defendant for
the same conduct, even if the indictment or
information which commences the prosecution is
quashed or the proceedings thereon are set aside,
or are reversed on appeal;
(e) an administrative agency is restrained by court
order from investigating or otherwise proceeding
on a matter before it as to any criminal conduct
defined as a violation of any of the provisions of
article 41 of chapter 25 and article 2 of chapter 46
of the Kansas Statutes Annotated which may be
discovered as a result thereof regardless of who
obtains the order of restraint; or
(f) whether or not the fact of the crime is concealed
by the active act or conduct of the accused, there
is substantially competent evidence to believe
two or more of the following factors are present:
(i) the victim was a child under 15 years of age
at the time of the crime; (ii) the victim was of such age or intelligence that the victim was unable to determine that the acts constituted a crime; (iii) the victim was prevented by a parent or other legal authority from making known to law enforcement authorities the fact of the crime whether or not the parent or other legal authority is the accused; and (iv) there is substantially competent expert testimony indicating the victim psychologically repressed such witness' memory of the fact of the crime, and in the expert's professional opinion the recall of such memory is accurate and free of undue manipulation, and substantial corroborating evidence can be produced in support of the allegations contained in the complaint or information but in no event may a prosecution be commenced as provided in this section later than the date the victim turns 28 years of age. Corroborating evidence may include, but is not limited to, evidence the defendant committed similar acts against other persons or evidence of contemporaneous physical manifestations of the crime. "Parent or other legal authority" shall include but not be limited to natural and stepparents, grandparents, aunts, uncles or siblings.
(5)
An offense crime is committed either when
every
element occurs, or, if a legislative purpose to
prohibit a continuing offense plainly appears, at the
time when the course of conduct or the defendant's
complicity therein is terminated. Time starts to run
on the day after the offense is committed.
(6) A prosecution is commenced when a complaint or
information is filed, or an indictment returned, and
a warrant thereon is delivered to the sheriff or other
officer for execution. No such prosecution shall be
deemed to have been commenced if the warrant so
issued is not executed without unreasonable delay.
COMMENT
Presently K.S.A. 2005 Supp. 21-3106. A “discovery rule” exception for fraud or breach of fiduciary obligation has been included based on a similar provision in the Model Penal Code. Additionally, the “DNA” exception presently limited to a sexually violent offense as defined in K.S.A. 22-3717 has been expanded to include all person felonies.
21-110. Multiple prosecutions for same act; lesser included crimes. (1) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment. However, if the defendant is found guilty of two or more crimes that merge because the same evidence is required to sustain a conviction of each charge, the defendant shall be convicted and sentenced for the greater offense only.
(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both. A lesser included crime is:
(a) a lesser degree of the same crime;
(b) a crime where all elements of the lesser crime are identical to some of the elements of the crime charged;
(c) an attempt to commit the crime charged; or
(d) an attempt to commit a crime defined under subsection (2)(a) or (2)(b).
(3) Whenever charges are filed against a person, accusing the person of a crime which includes another crime of which the person has been convicted, the conviction of the lesser included crime shall not bar prosecution or conviction of the crime charged if the crime charged was not consummated at the time of conviction of the lesser included crime, but the conviction of the lesser included crime shall be annulled upon the filing of such charges. Evidence of the person's plea or any admission or statement made by the person in connection therewith in any of the proceedings which resulted in the person's conviction of the lesser included crime shall not be admissible at the trial of the crime charged. If the person is convicted of the crime charged, or of a lesser included crime, the person so convicted shall receive credit against any prison sentence imposed or fine to be paid for the period of confinement actually served or the amount of any fine actually paid under the sentence imposed for the annulled conviction.
COMMENT
Presently K.S.A. 21-3107. In subparagraph (1) the committee has added language to inform in the event of merger, the defendant is to be convicted of the greater offense only. This is consistent with decisional law. See, State v. Winters, 276 Kan. 34, 72 P.3d 564 (2003).
21-111. Effect of former prosecution. (1) A prosecution is barred if the defendant was formerly prosecuted for the same crime, based upon the same facts, if such former prosecution:
(a) Resulted in either a conviction or an acquittal or in a determination that the evidence was insufficient to warrant a conviction; or
(b) Was terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact or legal proposition necessary to a conviction in the subsequent prosecution; or
(c) Was terminated without the consent of the defendant after the defendant had been placed in jeopardy, except where such termination shall have occurred by reason of: (i) The illness or death of an indispensable party; or (ii) the inability of the jury to agree; or (iii) the impossibility of the jury arriving at a verdict. A defendant is in jeopardy when he or she is put on trial in a court of competent jurisdiction upon an indictment, information or complaint sufficient in form and substance to sustain a conviction, and in the case of trial by jury, when the jury has been impaneled and sworn, or where the case is tried to the court without a jury, when the court has begun to hear evidence.
A conviction of an
included offense crime is an acquittal of the offense charged.
(2) A prosecution is barred if the defendant was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution:
(a) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely; or was for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution, or the crime was not consummated when the former trial began; or
(b) Was terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact necessary to a conviction in the subsequent prosecution; or
(c) Was terminated without the consent of the defendant after the defendant had been placed in jeopardy, except where such termination shall have occurred by reason of: (i) The illness or death of an indispensable party; or (ii) the inability of the jury to agree; or (iii) the impossibility of the jury arriving at a verdict, and the subsequent prosecution is for an offense of which the defendant could have been convicted if the former prosecution had not been terminated improperly.
(3) A prosecution is barred if the defendant was formerly prosecuted in a district court of the United States or in a court of general jurisdiction of a sister state or in the municipal court of any city of this state for a crime which is within the concurrent jurisdiction of this state, if such former prosecution:
(a) Resulted in either a conviction or an acquittal, and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution, or the offense was not consummated when the former trial began; or
(b) Was terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact necessary to a conviction in the prosecution in this state.
(4) A prosecution is not barred under this section:
(a) By a former prosecution before a court which lacked jurisdiction over the defendant or the offense; or
(b) By a former prosecution procured by the defendant without the knowledge of a prosecuting officer authorized to commence a prosecution for the maximum offense which might have been charged on the facts known to the defendant, and with the purpose of avoiding the sentence which otherwise might be imposed; or
(c) If subsequent proceedings resulted in the invalidation, setting aside, reversal or vacating of the conviction, unless the defendant was adjudged not guilty.
(5) In no case where a conviction for a lesser included crime has been invalidated, set aside, reversed or vacated shall the defendant be subsequently prosecuted for a higher degree of the crime for which such defendant was originally convicted.
COMMENT
Presently K.S.A. 21-3108. No change is recommended.
21-112. Burden
of proof; presumption of innocence. (a)
In all criminal proceedings the prosecution has the burden to prove
beyond a reasonable doubt that a defendant is guilty of a crime. This standard requires the prosecution to
prove beyond a reasonable doubt each
required factual element of a crime.
(b) A defendant is presumed
to be innocent until the contrary is proved. When there is a reasonable doubt
as to a defendant’s guilt, he or she must be acquitted found not
guilty. When there is a reasonable doubt
as to which of two or more degrees of an offense he or she is guilty, he
or she must be convicted of the lowest degree only.
COMMENT
The subject matter
of this statute was formerly in K.S.A. 21-3109.
However, the subcommittee added subparagraph (a) to codify Kansas law
regarding burden of proof in criminal proceedings. The provision is also consistent with PIK
Crim. 2d 52.02.
21-113. Definitions. The following definitions shall apply when the words and phrases defined are used in this code, except when a particular context clearly requires a different meaning.
(1) "Act" includes a failure or omission to take action.
(2) "Another" means a person or persons as defined in this code other than the person whose act is claimed to be criminal.
(3) "Conduct" means an act or a series of acts, and the accompanying mental state.
(4) "Conviction" includes a judgment of guilt entered upon a plea of guilty.
(5) "Deception" means knowingly and willfully making a false statement or representation, express or implied, pertaining to a present or past existing fact.
(6) To "Deprive
permanently" means to:
(a) Take from the owner the possession, use or benefit of property, without an intent to restore the same; or
(b) Retain property without intent to restore the same or with intent to restore it to the owner only if the owner purchases or leases it back, or pays a reward or other compensation for its return; or
(c) Sell, give, pledge or otherwise dispose of any interest in property or subject it to the claim of a person other than the owner.
(7) "Dwelling" means a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence.
(8) For purposes of this act,
"expungement" means the sealing of records such that they are
unavailable except to the petitioner and criminal justice agencies as provided
by K.S.A. 22-4701, et seq. and amendments thereto and except as provided in
this act.
(9)(8)
"Forcible felony" includes any treason, murder, voluntary
manslaughter, rape, robbery, burglary, arson, kidnapping, aggravated battery,
aggravated sodomy and any other felony which involves the use or threat of
physical force or violence against any person.
(10)(9)
"Intent to defraud" means an intention to deceive another person, and
to induce such other person, in reliance upon such deception, to assume,
create, transfer, alter or terminate a right, obligation or power with
reference to property.
(11)(10) "Law
enforcement officer" means:
(a) Any person who by virtue of such person's office or public employment is vested by law with a duty to maintain public order or to make arrests for crimes, whether that duty extends to all crimes or is limited to specific crimes;
(b) any officer of the Kansas department of corrections or, for the purposes of K.S.A. 21-3409, 21-3411 and 21-3415, and amendments thereto, any employee of the Kansas department of corrections; or
(c) any university police officer or campus police officer, as defined in K.S.A. 22-2401a, and amendments thereto.
(12)(11)
"Obtain" means to bring about a transfer of interest in or possession
of property, whether to the offender or to another.
(13)(12)
"Obtains or exerts control" over property includes but is not limited
to, the taking, carrying away, or the sale, conveyance, or transfer of title
to, interest in, or possession of property.
(14)(13)
"Owner" means a person who has any interest in property.
(15)(14)
"Person" means an individual, public or private corporation,
government, partnership, or unincorporated association.
(16)(15)
"Personal property" means goods, chattels, effects, evidences of
rights in action and all written instruments by which any pecuniary obligation,
or any right or title to property real or personal, shall be created,
acknowledged, assigned, transferred, increased, defeated, discharged, or
dismissed.
(17)(16)
"Property" means anything of value, tangible or intangible, real or
personal.
(18)(17)
"Prosecution" means all legal proceedings by which a person's
liability for a crime is determined.
(19)(18)
"Public employee" is a person employed by or acting for the state or
by or for a county, municipality or other subdivision or governmental instrumentality
of the state for the purpose of exercising their respective powers and
performing their respective duties, and who is not a "public
officer."
(20)(19)
"Public officer" includes the following, whether elected or
appointed:
(a) An executive or administrative officer of the state, or a county, municipality or other subdivision or governmental instrumentality of or within the state.
(b) A member of the legislature or of a governing board of a county, municipality, or other subdivision of or within the state.
(c) A judicial officer, which shall include a judge of the district court, juror, master or any other person appointed by a judge or court to hear or determine a cause or controversy.
(d) A hearing officer, which shall include any person authorized by law or private agreement, to hear or determine a cause or controversy and who is not a judicial officer.
(e) A law enforcement officer.
(f) Any other person exercising the functions of a public officer under color of right.
(21)(20)
"Real property" or "real estate" means every estate,
interest, and right in lands, tenements and hereditaments.
(22)(21)
"Solicit" or "solicitation" means to command, authorize,
urge, incite, request, or advise another to commit a crime.
(23)(22)
"State" or "this state" means the state of Kansas and all
land and water in respect to which the state of Kansas has either exclusive or
concurrent jurisdiction, and the air space above such land and water.
"Other state" means any state or territory of the United States, the
District of Columbia and the Commonwealth of Puerto Rico.
(24)(23)
"Stolen property" means property over which control has been obtained
by theft.
(25)(24)
"Threat" means a communicated intent to inflict physical or other
harm on any person or on property.
(26)(25) "Written
instrument" means any paper, document or other instrument containing
written or printed matter or the equivalent thereof, used for purposes of
reciting, embodying, conveying or recording information, and any money, token,
stamp, seal, badge, trademark, or other evidence or symbol of value, right,
privilege or identification, which is capable of being used to the advantage or
disadvantage of some person.
COMMENT
Presently, the provisions of this section are in K.S.A. 21-3110 and 21-3110A.
Article 32. - PRINCIPLES OF CRIMINAL LIABILITY
21-3201. Criminal intent. (a) Except as otherwise provided, a criminal
intent is an essential element of every crime defined by this code. Criminal
intent may be established by proof that the conduct of the accused person was
intentional or reckless. Proof of intentional conduct shall be required to
establish criminal intent, unless the statute defining the crime expressly
provides that the prohibited act is criminal if done in a reckless manner.
(b) Intentional
conduct is conduct that is purposeful and willful and not accidental. As used
in this code, the terms "knowing," "willful,"
"purposeful," and "on purpose" are included within the term
"intentional."
(c) Reckless
conduct is conduct done under circumstances that show a realization of the
imminence of danger to the person of another and a conscious and unjustifiable
disregard of that danger. The terms "gross negligence," "culpable
negligence," "wanton negligence" and "wantonness" are
included within the term "recklessness" as used in this code.
21-201. Criminal intent. (a) Except as otherwise provided by law, a criminal intent is an essential element of every crime defined by this code. Criminal intent may be established by proof that the accused acted (i) intentionally; (ii) recklessly; or (iii) was criminally negligent with respect to each material element of the crime. Proof that an accused acted intentionally shall be required to establish criminal intent, unless the statute defining the crime expressly provides that the prohibited act is criminal if done in a reckless manner, or under circumstances evidencing criminal negligent.
(b)
Definitions. (i)
Intentional conduct is conduct that is purposeful and willful. The terms “knowing,” “willful,” “purposeful,”
are included within the term “intentional.”
(ii) Reckless conduct is conduct
done under circumstances that demonstrates a realization of the imminence of
danger and a conscious disregard of that danger. A conscious disregard of danger requires a
gross deviation from the standard of conduct that a law-abiding person would
observe in the same situation.
(iii) Criminal negligence is
conduct done under circumstances that demonstrates a failure to perceive a
substantial and unjustifiable risk as to the imminence of danger. A failure to perceive a substantial and
unjustifiable risk as to the imminence of danger requires a gross deviation
from the standard of conduct that a law-abiding person would observe in the
same situation.
COMMENT
Presently K.S.A. 21-3201. The statute is revised to clarify levels of
culpability and define essential terms.
Abandoned is equating gross negligence as reckless conduct. In the committee’s opinion, the blending of
the two distinct levels of culpability is confusing and has necessitated the
legislature on occasion to finesse the definition. See, for example, K.S.A. 21-3405 which
provides for a “material deviation from the standard of care which a reasonable
person would observe under the same circumstances.” This proposed revision provides for “criminal
negligence” as the third and lowest level of culpability in the code and as
defined is distinguishable from ordinary negligence. The definition of “reckless conduct”
clarifies that the accused must be subjectively aware of the risk.
21-202. Criminal intent; exclusions.
(1) Proof of criminal intent does not require proof of knowledge of the existence or constitutionality of the statute under which the accused is prosecuted, or the scope or meaning of the terms used in that statute.
(2) Proof of criminal intent does not require proof that the accused had knowledge of the age of a minor, even though age is a material element of the crime with which he is charged.
COMMENT
Presently K.S.A. 21-3202. No change is recommended.
21-203. Ignorance or mistake.
(1) A person's ignorance or mistake as to a matter of either fact or law, except as provided in section 21-3202, is a defense if it negatives the existence of the mental state which the statute prescribes with respect to an element of the crime.
(2) A person's reasonable belief that his conduct does not constitute a crime is a defense if:
(a) The crime is defined by an administrative regulation or order which is not known to him and has not been published in the Kansas administrative regulations or an annual supplement thereto, as provided by law; and he could not have acquired such knowledge by the exercise of due diligence pursuant to facts known to him; or
(b) He acts in reliance upon a statute which later is determined to be invalid; or
(c) He acts in reliance upon an order or opinion of the supreme court of Kansas or a United States appellate court later overruled or reversed;
(d) He acts in reliance upon an official interpretation of the statute, regulation or order defining the crime made by a public officer or agency legally authorized to interpret such statute.
(3) Although a person's ignorance or mistake of fact or law, or reasonable belief, as described in subsection (2) of this section, is a defense to the crime charged, he may be convicted of an included crime of which he would be guilty if the fact or law were as he believed it to be.
COMMENT
Presently K.S.A. 21-3203. No change is recommended.
21-204. Guilt
without criminal intent, when.
A person may be guilty of an offense without having criminal intent if the crime is: (1) A misdemeanor, cigarette or tobacco infraction or traffic infraction and the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described; or (2) a violation of K.S.A. 8-1567 or 8-1567a and amendments thereto.
COMMENT
Presently K.S.A. 21-3204. No change is recommended.
21-205. Liability for crimes of another. A person is criminally responsible for a crime committed by another if:
(a) such person intentionally aids, abets, advises, hires,
counsels or procures the other to
commit the crime; or
(b)
such person and another engage in an unlawful
activity and the other person acts in a reckless or negligent manner likely to
result in death, great bodily injury, or disfigurement to other individuals.
(2) A person liable under subsection (1) hereof is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended.
(3) A person liable under this section may be charged with and convicted of the crime although the person alleged to have directly committed the act constituting the crime lacked criminal or legal capacity or has not been convicted or has been acquitted or has been convicted of some other degree of the crime or of some other crime based on the same act.
COMMENT
The proposed amendment is consistent with the Kansas Supreme Court’s holding in State v. Garza, 259 Kan. 826, 916 P.2d 9 (1996) that accomplice liability will attach when the two parties engage in an unlawful activity such as drag racing or gang fights and innocent third parties are seriously injured, maimed, or killed. The amendment clarifies that accomplice liability attaches regardless of whether the underlying prohibited act is criminal if done in a reckless or criminally negligent manner.
K.S.A. 21-206. Corporations; criminal responsibility. (1) A corporation is criminally responsible for acts committed by its agents when acting within the scope of their authority.
(2) "Agent" means any director, officer, servant, employee or other person who is authorized to act in behalf of the corporation.
COMMENT
Presently K.S.A. 21-3206. [COMMITTEE NOTE: DISCUSSION RE THIS STATUTE WAS DEFERRED UNTIL THE JULY 25TH MEETING].
21-207. Individual liability for corporate crime. (1) An individual who performs criminal acts, or causes such acts to be performed, in the name of or on behalf of a corporation is legally responsible to the same extent as if such acts were in his own name or on his own behalf.
(2) An individual who has been convicted of a crime based on conduct performed by him for and on behalf of a corporation is subject to punishment as an individual upon conviction of such crime, although a lesser or different punishment is authorized for the corporation.
COMMENT
Presently K.S.A. 21-3207.
21-208. Intoxication. (1) The fact that a person charged with a crime was in an intoxicated condition at the time the alleged crime was committed is a defense only if such condition was involuntarily produced and rendered such person substantially incapable of knowing or understanding the wrongfulness of his conduct and of conforming his conduct to the requirements of law.
(2) An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.
COMMENT
Presently K.S.A. 21-3208. Subparagraph (1) applies to general intent crimes and subparagraph (2) applies to specific intent crimes. The distinction is this: If the definition of a crime requires a more particular intent or state of mind than required under K.S.A. 21-201, voluntary intoxication may be a defense.
21-209. Compulsion. (1) A person is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which he performs under the compulsion or threat of the imminent infliction of death or great bodily harm, if he reasonably believes that death or great bodily harm will be inflicted upon him or upon his spouse, parent, child, brother or sister if he does not perform such conduct.
(3) The defense provided by this section is not available to one who willfully or wantonly places himself in a situation in which it is probable that he will be subjected to compulsion or threat.
COMMENT
Presently K.S.A. 21-3209.
21-210. Entrapment. A person is not guilty of a crime if his criminal conduct was induced or solicited by a public officer or his agent for the purposes of obtaining evidence to prosecute such person, unless:
(a) The public officer or his agent merely afforded an opportunity or facility for committing the crime in furtherance of a criminal purpose originated by such person or a co-conspirator; or
(b) The crime was of a type which is likely to occur and recur in the course of such person's business, and the public officer or his agent in doing the inducing or soliciting did not mislead such person into believing his conduct to be lawful.
COMMENT
Presently K.S.A. 21-3210.
21-211. Use of force in defense of a person. A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor's imminent use of unlawful force.
COMMENT
Presently K.S.A. 21-3211.
21-212. Use of force in defense of dwelling. A person is justified in the use of force against another when and to the extent that it appears to him and he reasonably believes that such conduct is necessary to prevent or terminate such other's unlawful entry into or attack upon his dwelling.
COMMENT
Presently K.S.A. 21-212.
21-213. Use of force in defense of property other than a dwelling. A person who is lawfully in possession of property other than a dwelling is justified in the threat or use of force against another for the purpose of preventing or terminating an unlawful interference with such property. Only such degree of force or threat thereof as a reasonable man would deem necessary to prevent or terminate the interference may intentionally be used.
COMMENT
Presently K.S.A. 21-3213.
21-214. Use of force by an aggressor. The justification described in sections 21-3211,
21-3212, and 21-3213 21-211, 212, and 213 is not available to a person who:
(1) Is attempting to commit, committing, or escaping from the commission of a forcible felony; or
(2) Initially provokes the use of force against himself or another, with intent to use such force as an excuse to inflict bodily harm upon the assailant; or
(3) Otherwise initially provokes the use of force against himself or another, unless:
(a) He has reasonable ground to believe that he is in imminent danger of death or great bodily harm, and he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
COMMENT
Presently K.S.A. 21-3214.
21-215. Law enforcement officer's use of force in making arrest. (1) A law enforcement officer, or any person whom such officer has summoned or directed to assist in making a lawful arrest, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. Such officer is justified in the use of any force which such officer reasonably believes to be necessary to effect the arrest and of any force which such officer reasonably believes to be necessary to defend the officer's self or another from bodily harm while making the arrest. However, such officer is justified in using force likely to cause death or great bodily harm only when such officer reasonably believes that such force is necessary to prevent death or great bodily harm to such officer or another person, or when such officer reasonably believes that such force is necessary to prevent the arrest from being defeated by resistance or escape and such officer has probable cause to believe that the person to be arrested has committed or attempted to commit a felony involving great bodily harm or is attempting to escape by use of a deadly weapon, or otherwise indicates that such person will endanger human life or inflict great bodily harm unless arrested without delay.
(2) A law enforcement officer making an arrest pursuant to an invalid warrant is justified in the use of any force which such officer would be justified in using if the warrant were valid, unless such officer knows that the warrant is invalid.
COMMENT
Presently K.S.A. 21-3215.
21-216. Private person's use of force in making arrest. (1) A private person who makes, or assists another private person in making a lawful arrest is justified in the use of any force which he would be justified in using if he were summoned or directed by a law enforcement officer to make such arrest, except that he is justified in the use of force likely to cause death or great bodily harm only when he reasonably believes that such force is necessary to prevent death or great bodily harm to himself or another.
(2) A private person who is summoned or directed by a law enforcement officer to assist in making an arrest which is unlawful, is justified in the use of any force which he would be justified in using if the arrest were lawful.
COMMENT
Presently K.S.A. 21-216.
21-217. Use of force in resisting arrest. A person is not authorized to use force to resist an arrest which he knows is being made either by a law enforcement officer or by a private person summoned and directed by a law enforcement officer to make the arrest, even if the person arrested believes that the arrest is unlawful.
COMMENT
Presently K.S.A. 21-3217.
PART II. - PROHIBITED CONDUCT
Article 33 –
Anticipatory Crimes
21-301. Attempt. (a) An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.
(b) It shall not be a defense to a charge of attempt that the circumstances under which the act was performed or the means employed or the act itself were such that the commission of the crime was not possible.
(c) An attempt to commit an off-grid felony shall be ranked at nondrug severity level 1. An attempt to commit any other nondrug felony shall be ranked on the nondrug scale at two severity levels below the appropriate level for the underlying or completed crime. The lowest severity level for an attempt to commit a nondrug felony shall be level 10.
(d) An attempt to commit a felony which prescribes a sentence on the drug grid shall reduce the prison term prescribed in the drug grid block for an underlying or completed crime by six months.
(e) An attempt to commit a class A person misdemeanor is a class B person misdemeanor. An attempt to commit a class A nonperson misdemeanor is a class B nonperson misdemeanor.
(f) An attempt to commit a class B or C misdemeanor is a class C misdemeanor.
COMMENT
Presently K.S.A. 21-3301.
21-302. Conspiracy. (a) A conspiracy is an agreement with another person to commit a crime or to assist in committing a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by such person or by a co-conspirator.
(b)
(i) It is immaterial to the criminal
liability of a accused who conspires with another to commit a crime that he or
the person with whom the accused conspires does not occupy a particular
position or have a particular characteristic that is an element of such crime,
if the accused believes that one of them
does; or (ii) the person whom he
conspires is irresponsible or has an immunity to prosecution or conviction for
the commission of the crime.
(b) (c) It shall be a defense to a charge of
conspiracy that the accused voluntarily and in good faith withdrew from the
conspiracy, and communicated the fact of such withdrawal to one or more of the
accused person's co-conspirators, before any overt act in furtherance of the
conspiracy was committed by the accused or by a co-conspirator.
(c) (d)
Conspiracy to commit an off-grid felony shall be ranked at nondrug severity
level 2. Conspiracy to commit any other nondrug felony shall be ranked on the
nondrug scale at two severity levels below the appropriate level for the
underlying or completed crime. The lowest severity level for conspiracy to
commit a nondrug felony shall be level 10.
(d) (e)
Conspiracy to commit a felony which prescribes a sentence on the drug grid
shall reduce the prison term prescribed in the drug grid block for an underlying
or completed crime by six months.
(e) (f) A
conspiracy to commit a misdemeanor is a class C misdemeanor.
Comment
Presently K.S.A. 21-3302. The committee proposes the statute should be amended for the following reasons. First, to clarify or explicitly provide for culpability under a unilateral theory of conspiracy rather than a bilateral theory. Second, to clarify a co-conspirator’s status in the criminal justice system is not a bar to the prosecution of other co-conspirators. The proposal is consistent with the Model Penal Code, section. 5.04(1)(a) and (b).
21-303. Criminal solicitation. (a) Criminal solicitation is commanding, encouraging or requesting another person to commit a felony, attempt to commit a felony or aid and abet in the commission or attempted commission of a felony for the purpose of promoting or facilitating the felony.
(b) It is immaterial under subsection (a) that the actor fails to communicate with the person solicited to commit a felony if the person's conduct was designed to effect a communication.
(c) It is an affirmative defense that the actor, after soliciting another person to commit a felony, persuaded that person not to do so or otherwise prevented the commission of the felony, under circumstances manifesting a complete and voluntary renunciation of the actor's criminal purposes.
(d) Criminal solicitation to commit an off-grid felony shall be ranked at nondrug severity level 3. Criminal solicitation to commit any other nondrug felony shall be ranked on the nondrug scale at three severity levels below the appropriate level for the underlying or completed crime. The lowest severity level for criminal solicitation to commit a nondrug felony shall be level 10.
(e) Criminal solicitation to commit a felony which prescribes a sentence on the drug grid shall reduce the prison term prescribed in the drug grid block for an underlying or completed crime by six months.
COMMENT
Presently K.S.A. 21-3303.
K.S.A. 21-401. Capital murder. (a) Capital Murder is the
(1) Intentional and premeditated killing of any person in the commission of kidnapping, as defined in K.S.A. [21-3420] and amendments thereto, or aggravated kidnapping, as defined in K.S.A. [21-3421]and amendments thereto, when the kidnapping or aggravated kidnapping was committed with the intent to hold such person for ransom;
(2) intentional and premeditated killing of any person pursuant to a contract or agreement to kill such person or being a party to the contract or agreement pursuant to which such person is killed;
(3) intentional and premeditated killing of any person by an inmate or prisoner confined in a state correctional institution, community correctional institution or jail or while in the custody of an officer or employee of a state correctional institution, community correctional institution or jail;
(4) intentional and premeditated killing of the victim of one of the following crimes in the commission of, or subsequent to, such crime: Rape, as defined in K.S.A. [21-3502] and amendments thereto, criminal sodomy, as defined in subsections [(a)(2) or (a)(3) of K.S.A. 21-3505] and amendments thereto or aggravated criminal sodomy, as defined in K.S.A. [21-3506] and amendments thereto, or any attempt thereof, as defined in K.S.A. [21-3301]and amendments thereto;
(5) intentional and premeditated killing of a law enforcement officer, as defined in K.S.A. [21-3110] and amendments thereto;
(6) intentional and premeditated killing of more than one person as a part of the same act or transaction or in two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct; or
(7) intentional and premeditated killing of a child under the age of 14 in the commission of kidnapping, as defined in K.S.A. [21-3420] and amendments thereto, or aggravated kidnapping, as defined in K.S.A. [21-3421] and amendments thereto, when the kidnapping or aggravated kidnapping was committed with intent to commit a sex offense upon or with the child or with intent that the child commit or submit to a sex offense.
(b) For purposes of this section, "sex offense" means rape, as defined in K.S.A. [21-3502] and amendments thereto, aggravated indecent liberties with a child, as defined in K.S.A.[21-3504]and amendments thereto, aggravated criminal sodomy, as defined in K.S.A. 21-3506] and amendments thereto, prostitution, as defined in K.S.A. [21-3512] and amendments thereto, promoting prostitution, as defined in K.S.A. [21-3513] and amendments thereto or sexual exploitation of a child, as defined in K.S.A. [21-3516] and amendments thereto.
(c) Capital murder is an off-grid person felony.
COMMENT
Presently K.S.A. 21-3439. Sentencing procedures for persons convicted of capital murder are found in K.S.A. 21-4622 through 21-4631. In State v. Marsh, docket no. 81135, opinion filed 12/17/05, the Kansas Supreme Court held K.S.A. 21-4624(e) unconstitutional on its face under the Eight and Fourteenth Amendments. The Marsh court also held the hard 40 sentencing scheme in K.S.A. 2003 Supp. 21-4635(a) does not run afoul of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Marsh is presently pending before the United States Supreme Court after its grant of certiorari upon application of the state.
K.S.A. 21-402. Murder in the first degree. Murder in the first degree is the killing of a human being committed:
(a)(1) Intentionally and with premeditation; or
(b)(2) in the commission of, attempt to commit, or
flight from an inherently dangerous felony as defined in K.S.A. [21-3436] and amendments thereto;
or
(3) upon a sudden quarrel or in the heat of passion if the defendant has a family or other intimate relationship with the victim, and the killing is neither motivated by an understandable view of the victim’s best interests nor provoked by the victim’s serious abuse of the defendant or of some other family member. “Family or other intimate relationship” between the defendant and the victim includes:
(i)
spousal;
(j)
parent and child;
(k)
pesons who are presently residing together in a
sexual relationship or have previously resided together in a sexual
relationship;
(l)
between a person and child when the person is
residing with the child’s parent in a sexual relationship; the child is a
member of the same household; and the child is under the age of 18 years;
(m)
persons who have a child in common regardless of
whether they have been married or have lived together at any time;
(n)
persons who have an adopted child or step-child ;
(o)
a man and woman if the woman is pregnant and the man
is alleged to be the father, regardless of whether they have been married or
have lived together at any time.
Murder in the first degree is an off-grid person felony.
COMMENT
Presently K.S.A. 21-3401. The committee proposes an amendment recognizing that a family or other intimate relationship as defined herein should be an aggravating circumstance that elevates a homicide committed upon a sudden quarrel or in the heat of passion to murder in the first degree. Under present law, in an aggravated indecent liberties prosecution, the Kansas Supreme Court has held a familial relationship is a fiduciary relationship within the meaning of K.S.A. 21-4716(c)(2)(D) authorizing an upward departure. See, State v. Ippert, 268 Kan. 254, 995 P.2d 858 (2000). However, the committee’s research suggests an upward departure based upon a family relationship is rarely pursued. More importantly, elevating such killings from voluntary manslaughter to murder in the first degree gives testament to the special and higher duties and obligations that the law should demand of persons in a family or intimate relationship. Thus the proposed amendment embraces a moral imperative that a crimes code should embrace to deter family violence and provide for a punishment recognizing the enormity of the crime.
K.S.A. 21-403. Inherently dangerous felony; definition. (a) Any of the following felonies shall be deemed an inherently dangerous felony whether or not such felony is so distinct from the homicide alleged to be a violation of subsection (b) of K.S.A. [21-3401] and amendments thereto as not to be an ingredient of the homicide alleged to be a violation of subsection (b) of K.S.A. [21-3401] and amendments thereto:
(1) Kidnapping, as defined in K.S.A. [21-3420] and amendments thereto;
(2) aggravated kidnapping, as defined in K.S.A. [21-3421] and amendments thereto;
(3) robbery, as defined in K.S.A. 21-3426] and amendments thereto;
(4) aggravated robbery, as defined in K.S.A. [21-3427] and amendments thereto;
(5) rape, as defined in K.S.A. [21-3502] and amendments thereto;
(6) aggravated criminal sodomy, as defined in K.S.A. [21-3506] and amendments thereto;
(7) abuse of a child, as defined in K.S.A. [21-3609] and amendments thereto;
(8) felony theft under subsection (a) or (c) of [21-3701] and amendments thereto;
(9) burglary, as defined in K.S.A [21-3715] and amendments thereto;
(10) aggravated burglary, as defined in K.S.A. [21-3716] and amendments thereto;
(11) arson, as defined in K.S.A. [21-3718] and amendments thereto;
(12) aggravated arson, as defined in K.S.A. [21-3719] and amendments thereto;
(13) treason, as defined in K.S.A. [21-3801] and amendments thereto;
(14) any felony offense as provided in K.S.A. [65-4127a, 65-4127b or 65-4159] or K.S.A. [65-4160] through 65-4164] of the Uniform Controlled Substances Act and amendments thereto;
(15) any felony offense as provided in K.S.A. [21-4219] (criminal discharge of a firearm at an unoccupied building) and amendments thereto;
(16) endangering the food supply as defined in K.S.A. [21-4221] and amendments thereto; and
(17) aggravated endangering the food supply as defined in K.S.A. [21-4222], and amendments thereto.
(b) Any of the following felonies shall be deemed an inherently dangerous felony only when such felony is so distinct from the homicide alleged to be a violation of subsection (b) of K.S.A. [21-3401] and amendments thereto as to not be an ingredient of the homicide alleged to be a violation of subsection (b) of K.S.A. [21-3401] and amendments thereto:
(1) Murder in the first degree, as defined in subsection (a) of K.S.A. [21-3401] and amendments thereto;
(2) murder in the second degree, as defined in subsection (a) of K.S.A. [21-3402] and amendments thereto;
(3) voluntary manslaughter, as defined in subsection (a) of K.S.A. [21-3403] and amendments thereto;
(4) aggravated assault, as defined in K.S.A. [21-3410] and amendments thereto;
(5) aggravated assault of a law enforcement officer, as defined in K.S.A. [21-3411] and amendments thereto;
(6) aggravated battery, as defined in subsection (a)(1) of K.S.A. 21-3414] and amendments thereto; and
(7) aggravated battery against a law enforcement officer, as defined in K.S.A.[21-3415] and amendments thereto.
COMMENT
Presently K.S.A.
21-3436.
K.S.A. 21-404. Murder in the second degree. Murder in the second degree is the killing of a human being committed:
(a) Intentionally; or
(b) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.
Murder in the second degree as described in subsection (a) is a severity level 1, person felony. Murder in the second degree as described in subsection (b) is a severity level 2, person felony.
COMMENT
Presently K.S.A. 21-3402.
K.S.A. 21-405. Voluntary manslaughter. 21-3403. Voluntary manslaughter is the intentional killing of a human being committed:
(a) Upon a sudden quarrel or in the heat of passion but excluding such a killing where the defendant has a family relationship with the victim, and the killing is neither motivated by an understandable view of the victim’s best interests nor provoked by the victim’s serious abuse of the defendant or of some other family member; or
(b) upon an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A. [21-3211, 21-3212 or 21-3213] and amendments thereto.
Voluntary manslaughter is a severity level 3, person felony.
COMMENT
Presently, K.S.A. 21-3403. The proposed amendment is consistent with the committee’s previously stated rationale that a family or intimate relationship should be considered an aggravating circumstance elevating a homicide arising thereunder as murder in the first degree.
K.S.A. 21-406. Involuntary manslaughter. Involuntary manslaughter is the unintentional killing of a human being committed:
(a) Recklessly; or
(b) in the
commission of, or attempt to commit, or flight from any felony, other than an
inherently dangerous felony as defined in K.S.A. [21-3436] and amendments
thereto, that is enacted for the protection of human life or safety or a
misdemeanor that is enacted for the protection of human life or safety,
including acts described in K.S.A. 8-1566 (reckless driving), and
8-1568 (fleeing or attempting to elude a police officer) and
amendments thereto , but excluding the acts
described in K.S.A. 8-1567 (driving under the influence of alcohol or
drugs); or
(c) during the commission of a lawful act in an unlawful manner.
Involuntary
manslaughter as described for driving under the influence of alcohol or drugs
as prescribed in K.S.A. 8-1567 is a severity level 4, person felony. Involuntary manslaughter as otherwise
described in this statute is a severity level 5, person felony.
COMMENT
Presently K.S.A.
21-3404 and 21-3442. For the sake of
coherence, the two laws have been combined into one statute.
K.S.A. 21-407. Vehicular homicide. Vehicular homicide is the unintentional
killing of a human being committed by the operation of an automobile, airplane,
motor boat or other motor vehicle in a criminally negligent manner.
which creates an unreasonable risk of
injury to the person or property of another and which constitutes a material
deviation from the standard of care which a reasonable person would observe
under the same circumstances.
Vehicular homicide is a class A person misdemeanor. The proposed amendment requires a culpable state of criminal negligence as defined in the proposed amendments to K.S.A. 21-3201 that has been renumbered in this proposed recodification as K.S.A. 21-201.
COMMENT
Presently, K.S.A.
21-3405.
K.S.A. 21-408.
Assisting suicide. (a) Assisting suicide is:
(1) Knowingly by force or duress causing
another person to commit or to attempt to commit suicide; or
(2) with the intent and purpose of assisting
another person to commit or to attempt to commit suicide, knowingly either:
(A) Providing the physical means by which
another person commits or attempts to commit suicide; or
(B) participating in a physical act by which
another person commits or attempts to commit suicide.
(b) Assisting suicide under subsection (1) is
a severity level 3, person felony. Assisting suicide under subsection (2) is a
severity level 9, person felony.
COMMENT
Presently K.S.A. 21-3406.