Volume 223 — Kansas Reports

SYLLABUS BY THE COURT 1. CRIMINAL LAW — <italic>Inability to Provide Full Transcript —</italic> <italic>Effect.</italic> The inability of the state to provide a full transcript of the trial proceedings does not entitle a defendant to a new trial per se. Before defendant can claim he is entitled to a new trial he must demonstrate that despite a good faith effort it is impossible to reconstruct the missing portion of the record and this precludes effective appellate review of the issues. 2. SAME — <italic>Instruction Not Objected To — Instruction Must Be</italic> "<italic>Clearly Erroneous.</italic>" When an instruction has not been objected to at trial, this court's scope of review is limited to a determination of whether the instruction is "clearly erroneous." An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility the jury would have returned a different verdict. 3. SAME — <italic>When Malice May Be Inferred.</italic> Malice may be inferred from the fact a homicide was committed with a deadly weapon. 4. SAME — <italic>Second Degree Murder — New Trial Denied —</italic> <italic>Instructions.</italic> In an appeal from a criminal conviction for second degree murder (K.S.A. <cross_reference>21-3402</cross_reference>), the record is examined and it is held: The trial court did not err in (1) failing to grant a new trial due to the unavailability of a portion of the trial transcript, or (2) its instructions to the jury.

SYLLABUS BY THE COURT 1. CONSTITUTIONAL LAW — <italic>Cruel or Unusual Punishment — Punishment</italic> <italic>Disproportionate to Crime.</italic> Punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. 2. SAME — <italic>Cruel or Unusual Punishment — Factors to Weigh.</italic> In determining whether the length of a sentence offends the constitutional prohibition against cruel punishment three techniques should be considered: <block_quote> (1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;</block_quote> <block_quote> (2) A comparison of the punishment with punishment imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and</block_quote> <block_quote> (3) A comparison of the penalty with punishments in other jurisdictions for the same offense.</block_quote> 3. CRIMINAL LAW — <italic>Sentencing — Mandatory Minimum Sentencing for</italic> <italic>Crimes Involving Firearms.</italic> A five year mandatory minimum sentence without probation and parole privileges for the crime of murder with a firearm cannot be held so cruel or unusual either in its method or its length that it shocks the conscience and offends fundamental notions of human dignity so as to be constitutionally impermissible. 4. SAME — <italic>Sentencing — Statutory Distinctive Treatment to Class</italic> <italic>of Persons.</italic> A state statute may single out a class of persons for distinctive treatment only if the classification bears a rational relation to the purpose of the legislation and if persons similarly situated with respect to the legitimate purpose of the law receive like treatment. 5. SAME — <italic>Sentencing — Mandatory Minimum Sentencing for Crimes</italic> <italic>Involving Firearms — Equal Protection.</italic> K.S.A. 1977 Supp. <cross_reference>21-4618</cross_reference> and <cross_reference>22-3717</cross_reference>(8), which deny the privileges of probation and parole and require mandatory minimum sentences for all Article 34 crimes in which the defendant used a firearm in the commission of the crime, are not constitutionally impermissible as denying equal protection of the law. 6. SAME — <italic>Sentencing — Judicial Prerogatives.</italic> In light of the Kansas sentencing statute, K.S.A. <cross_reference>21-4501</cross_reference>(<italic>b</italic>), the provisions of K.S.A. 1977 Supp. <cross_reference>21-4618</cross_reference> and <cross_reference>22-3717</cross_reference>(8) denying probation and parole privileges to a defendant convicted of an Article 34 crime in which the defendant used a firearm in the commission of the crime of murder in the second degree are not such a restriction on the judicial power of the sentencing judge as would constitute an impermissible legislative usurpation of the court's prerogatives.<page_number>Page 363</page_number> 7. SAME — <italic>Sequestration of Witnesses — Preliminary Hearing.</italic> The mandatory provisions for separation of witnesses in K.S.A. <cross_reference>22-2903</cross_reference> apply to preliminary hearings and until such time as the accused is bound over for trial; thereafter the exclusion or sequestration of the witnesses is not a matter of right but lies in the sound discretion of the trial court. 8. SAME — <italic>Murder with Firearm — Sentencing.</italic> The record of conviction for murder in the second degree in which the defendant used a firearm is examined and it is <italic>held</italic> no reversible error has been shown and the conviction and judgment are affirmed.