K.S.A. Chapter 21 Article 31
PRELIMINARY
Current through End
of 2008 Legislative Session
21-3101 Title
and construction.
21-3102 Scope
and application.
21-3103 Civil
remedies preserved.
21-3104 Territorial
applicability.
21-3105 Crimes
defined; classes of crimes.
21-3106 Time
limitations.
21-3107 Multiple
prosecutions for same act; lesser included crimes.
21-3108 Effect
of former prosecution.
21-3109 Defendant
presumed innocent; reasonable doubt as to guilt.
21-3110 Definitions.
21-3110a Expungement
defined.
21-3111 Invalidity
of part of act.
21-3101.
Title and construction.
This code
is called and may be cited as the Kansas Criminal Code.
History: L. 1969, ch.
180, § 21-3101;
21-3102.
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.
History: L. 1969, ch.
180, § 21-3102;
21-3103.
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.
History: L. 1969, ch.
180, § 21-3103;
21-3104.
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 is committed partly within this state if either an act which is a
constituent and material element of the offense, or the 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.
(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.
History: L. 1969, ch.
180, § 21-3104;
21-3105.
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.
History: L. 1969, ch.
180, § 21-3105; L. 1984, ch. 39, § 32; L. 1994, ch. 291, § 90; L. 1996, ch.
214, § 24; L. 1998, ch. 192, § 3; May 28.
(1) A
prosecution for murder, terrorism or illegal use of weapons of mass
destructionmay be commenced at any time.
(2) Except
as provided in subsection (5), a prosecution for any crime must be commenced
within 10 years after its commission if the victim is the
(3) (a) Except
as provided in subsection (5), a prosecution for a sexually violent offense as
defined in K.S.A. 22-3717, and amendments thereto, must be commenced within the
limitation of time provided by the law pertaining to such offense or one year
from the date on which the identity of the suspect is conclusively established
by DNA testing, whichever is later.
(b) For
purposes of this section, DNA means deoxyribonucleic acid.
(4) Except
as provided by subsection(5), a prosecution for any crime, as defined in K.S.A.
21-3105, and amendments thereto, not governed by subsections (1), (2), or (3),
must be commenced within five years after it is committed.
(5) 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.
(6) An
offense 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.
(7) 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.
History: L. 1969, ch.
180, § 21-3106; L. 1986, ch. 118, § 1; L. 1990, ch. 306, § 20; L. 1992, ch.
321, § 20; L. 1993, ch. 253, § 13; L. 1994, ch. 296, § 1; L. 1996, ch. 267, §
13; L. 1998, ch. 52, § 2; L. 1998, ch. 185, § 4; L. 2001, ch. 208, § 3; L.
2005, ch. 162, § 1; L. 2006, ch. 146, § 4; July 1.
21-3107.
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.
(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.
History: L. 1969, ch.
180, § 21-3107; L. 1974, ch. 146, § 1; L. 1983, ch. 107, § 1; L. 1998, ch. 185,
§ 1; July 1.
21-3108.
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 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.
History: L. 1969, ch.
180, § 21-3108; L. 1970, ch. 124, § 1; L. 1977, ch. 105, § 8; July 1.
21-3109.
Defendant presumed innocent; reasonable doubt as to guilt.
A defendant is presumed to be innocent until
the contrary is proved. When there is a reasonable doubt as to his guilt, he
must be acquitted. When there is a reasonable doubt as to which of two or more
degrees of an offense he is guilty, he may be convicted of the lowest degree
only.
History: L. 1969, ch.
180, § 21-3109; July 1, 1970.
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)
'Firearm' means any weapon designed or having the capacity to propel a
projectile by force of an explosion or combustion.
(9)
'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)
'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) '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)
'Obtain' means to bring about a transfer of interest in or possession of
property, whether to the offender or to another.
(13)
'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)
'Owner' means a person who has any interest in property.
(15)
'Person' means an individual, public or private corporation, government,
partnership, or unincorporated association.
(16)
'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)
'Property' means anything of value, tangible or intangible, real or personal.
(18)
'Prosecution' means all legal proceedings by which a person's liability for a
crime is determined.
(19)
'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)
'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) 'Real
property' or 'real estate' means every estate, interest, and right in lands,
tenements and hereditaments.
(22)
'Solicit' or 'solicitation' means to command, authorize, urge, incite, request,
or advise another to commit a crime.
(23)
'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)
'Stolen property' means property over which control has been obtained by theft.
(25)
'Threat' means a communicated intent to inflict physical or other harm on any
person or on property.
(26)
'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.
History: L. 1969, ch.
180, § 21-3110; L. 1976, ch. 145, § 106; L. 1990, ch. 97, § 1; L. 2004, ch. 48,
§ 1; L. 2005, ch. 141, § 1; L. 2008, ch. 150, § 2; July 1.
21-3110a.
Expungement defined.
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.
History: L. 1998, ch.
131, § 1; July 1.
21-3111.
Invalidity of part of act.
If any
provision of this act or its application to any person or circumstance is held
invalid, the remainder of the act or the application of the provision to other
persons or circumstances is not affected.
History: L. 1992, ch.
298, § 96; July 1, 1993.