Opinion
No. 47,664
Opinion filed July 17, 1975.
MEMORANDUM OPINION
CRIMINAL LAW — Instruction on Lesser Offense.
Appeal from Reno district court, division No. 2; JAMES H. REXROAD, judge. Opinion filed July 17, 1975. Affirmed.
Charles E. Orcutt, of Hutchinson, was on the brief for the appellant.
Curt T. Schneider, attorney general, and Porter K. Brown, county attorney, were on the brief for the appellee.
Defendant-appellant Charles Rodney McMillan was convicted of aggravated battery as defined in K.S.A. 21-3414. His points on appeal are that the instructions given by the court were erroneous in three respects and the court erred in refusing to give an instruction submitting the lesser offense of simple battery.
As to the instructions given, the record does not disclose that objections to any of them were made at the trial. Looking at the instructions as applied to the evidence we find them to be free from error.
On appellant's point that the lesser offense should have been submitted to the jury, the record shows no evidence to support a finding of common battery. The victim was struck six times on the head with a hammer. The defense was self-defense. Intent to injure was admitted. Appellant was guilty of aggravated battery or nothing. The judgment is affirmed.
FROMME, J., not participating.