The opinion of the court was delivered by
Jack Leroy Spears appeals his jury trial convictions of
first-degree felony murder (K.S.A. 21-3401), aggravated robbery
(K.S.A. 21-3427), theft (K.S.A. 1987 Supp. 21-3701), and forgery
Defendant arrived in Garden City on October 25, 1986, without
money, means of transport, or possessions other than the clothes
he was wearing. He went to the residence of a friend, Courtney
Johnson. He asked Johnson to take him to Randy Bolay's home on
Kello Street. Johnson complied and saw defendant enter the Bolay
That evening, Bolay and defendant attended a party.
Considerable drinking occurred and Bolay boasted of having $600
in cash in his possession for his planned vacation. Bolay and
defendant left the party in Bolay's pickup at approximately 3:30
a.m. on October 26. Defendant was seen leaving the Bolay
residence at 10:30 a.m. He went to a local drive-in where he paid
for his purchases with money taken from a large roll of bills.
That morning defendant came across another friend, Robert
Guerttman. While the two were together, Guerttman received word
his mother had died in Iowa. Defendant stated he had a pickup
truck and offered to drive Guerttman to Iowa for the funeral. The
following day, defendant cashed a $100 check drawn on Bolay's
account. On the same day, defendant had another friend pawn a
television set for $55 on his behalf. Defendant drove to Ottumwa,
Iowa, on October 28 in a yellow Toyota pickup truck. He went to
the home of a friend, James Breeding. That evening he told
Breeding he had beaten a man to death and that the victim would
not be found for a while. On October 30, 1986, defendant was
arrested for DUI in Iowa while driving the pickup. He told a
passenger that he might be using a different name when he talked
to the arresting officer.
On November 5, 1986, Randy Bolay's body was found in his Garden
City residence. Cause of the death of the decomposing body was
found to be multiple head wounds from a bladed object. Defendant
was arrested in Iowa and returned to Garden City.
The pickup defendant was driving belonged to Bolay. Bloody palm
prints and fingerprints in the Bolay residence belonged to
defendant. The pawned television set was the property of Bolay.
Belongings of Bolay were found in the pickup. In defendant's
duffel bag were cards belonging to Bolay and some bloody items.
The blood was identified as being Bolay's. The signature on the
check cashed by defendant on Bolay's account was found to have
been forged by defendant. Other facts will be stated as necessary
for the discussion of particular issues.
For his first issue, defendant contends the language employed
in the amended information on the count charging aggravated
robbery was insufficient. The count states:
"That on the 26th day of October, 1986, in said
County of Finney and State of Kansas, one Jack Leroy
Spears did then and there unlawfully, feloniously and
willfully take property, cash money, wallet, bank
deposit slip, and pick-up from the person or presence
of Randall C. Bolay by inflicting great bodily harm
to the person of Randall C. Bolay. Contrary to and in
violation of K.S.A. 21-3427, Aggravated Robbery, a
Class B felony."
K.S.A. 21-3427 provides:
"Aggravated robbery is a robbery committed by a
person who is armed with a dangerous weapon or who
inflicts bodily harm upon any person in the course of
The underlying crime of robbery is defined by K.S.A. 21-3426 as
"Robbery is the taking of property from the person
or presence of another by threat of bodily harm to
his person or the person of another or by force."
K.S.A. 22-3201 provides that the indictment, information, or
complaint shall be a plain and concise written statement of the
essential facts constituting the crime charged and when drawn in
the language of the statute shall be deemed sufficient. However,
the exact statutory words need not be used if the meaning is
clear. State v. Vakas, 242 Kan. 103
, Syl. ¶ 3, 744 P.2d 812
Defendant challenged the sufficiency of the count in a motion
for arrest of judgment, which motion was denied.
Is the aggravated robbery count fatally flawed? We believe not.
The count states defendant took property from Randy Bolay by
inflicting great bodily harm to the person of Randy Bolay. This
is a clear statement that the taking was by force and bodily harm
occurred from the application of that force.
Defendant next argues that, inasmuch as his conviction for
aggravated robbery is invalid, then the felony-murder conviction
must also fall as aggravated robbery is the underlying felony in
the felony-murder charge. This ...