State v. Anderson, 38303

Decision Date08 March 1952
Docket NumberNo. 38303,38303
Citation172 Kan. 402,241 P.2d 742
PartiesSTATE v. ANDERSON.
CourtKansas Supreme Court

Syllabus by the Court.

1. Assignments of error not argued or in any way relied upon by appellant, are treated upon appeal as abandoned.

2. When no complaint is made of the trial court's general instructions covering the issues involved in the action, no error can be predicated upon omission to give any particular instruction when no request therefor was made.

3. An appellant is in no position to complain of the inadequacy of an instruction where he has made no objection to it, nor requested a fuller instruction.

4. In criminal cases, the ultimate test applied in determining the validity of a plea of former conviction or former acquittal is identity of offenses, and it is not necessarily decisive that the two offenses may have some material fact in common. State v. Ragan, 123 Kan. 399, 256 P. 169.

5. The provisions of G.S. 1949, 62-1449 have no application to an action wherein defendant is charged in one information with the killing of a person under such conditions and circumstances as to constitute murder in the first degree and in another information charging defendant in two counts, one with having robbed some other person under such conditions and circumstances as would constitute robbery in the first degree and a second count, with felonious assault of such other person, each of said charges being a separate, distinct and unrelated offense.

Edward Rooney, of Topeka, argued the cause, and Jocob A. Dickinson, and David Prager, also of Topeka, were with him on the briefs for appellant.

Warren W. Shaw, Special Asst. County Atty., Topeka, argued the cause, and Harold R. Fatzer, Atty. Gen., Doral Hawks, County Atty., and William B. McElhenny, Sp. Asst. County Atty., Topeka, were with him on the briefs for appellee.

WERTZ, Justice.

This is an appeal from a conviction of first degree murder and robbery in the first degree, and a sentence of life imprisonment in the state penitentiary, in a consolidated trial on two informations. Only such facts as are material to the questions raised on appeal will be related.

The defendant was charged in two separate informations which were consolidated for trial at the request of defendant and were trial to the jury at the same time. In case No. 18,611 defendant was charged with murder in the first degree for the unlawful killing of Alice Irene Gilbert on January 4, 1950. In case No. 18,612 the defendant was charged in the first count of the information with felonious assault on John Guy McCarty on January 4, 1950, and on the second count of the information with robbery in the first degree alleged to have been committed on John Guy McCarty on January 4, 1950.

Defendant entered pleas of not guilty to the three counts of the informations, and trial was commenced by consent of the parties on May 1, 1950. On May 10, 1950, the state concluded its evidence and moved to withdraw from consideration of the jury the first count of the information in case No. 18,612 charging felonious assault, and to dismiss the same with prejudice for the reason that the state's evidence disclosed it was connected and associated with the other count of robbery. By consent of defendant the state's motion was sustained and this count of felonious assault was dismissed. Defendant then moved for a discharge on the second count of the information in case No. 18,612 charging robbery in the first degree, for the reason that he had been placed in jeopardy on this court by having been tried unsuccessfully on count one charging felonious assault and acquitted by the state's dismissal with prejudice. After consideration the court overruled defendant's motion to discharge defendant on the first degree robbery count. Defendant then moved for discharge on the first degree murder count on the sole ground that the state's evidence did not show the defendant guilty of the offense charged, which motion was by the court overruled.

Defendant proceeded with introduction of his evidence, at the conclusion of which the trial court called counsel for both sides into his chambers to consider defendant's requested instructions and instructions prepared by the court. There was no request for an instruction on intoxication. No objections were made by defendant to the court's instructions at the time or when read to the jury. The jury returned two separate verdicts; one, guilty of murder in the first degree and the other, guilty of robbery in the first degree. Post trial motions were filed and overruled, and defendant was sentenced to life imprisonment.

Defendant brings the case here. His specifications of error are five in number, three of which are neither briefed nor argued, and under such circumstances are regarded as abandoned and receive no consideration on appellate review. Carrington v. British American Oil Producing Co., 157 Kan. 101, 138 P.2d 463; Henderson v. Deckert, 160 Kan. 386, 162 P.2d 88. Grounds of appeal entitled to consideration and which are urged by defendant as a basis for reversal of the judgment and sentence will be considered in order.

Defendant contends the trial court erred in the instructions given to the jury in two particulars; first, the court failed to instruct the jury that intoxication could reduce homicide from first degree murder to second degree murder, and second, the court failed to give an instruction on robbery in the first degree other than instruction No. 18 which quoted the statute under which defendant was charged. As to defendant's first contention, the state asserts that the record does not justify defendant's contention that such an instruction on intoxication should have been given. A review of the record discloses that defendant prior to the time of the murder had been drinking but was not drunk. Witnesses described defendant's actions in great detail, as well as his conversation and demeanor. A friend with whom defendant had spent over twenty-four hours immediately prior to the time in question testified that defendant had drunk considerable and his voice sounded different; his speech was different; he did not stagger and no one assisted him. Two other companions testified that defendant was sober and one lady who had been with defendant two hours shortly preceding the killing testified defendant was sober. Defendant, testifying in his own behalf, did not say he was intoxicated or drunk; his defense as proposed to the jury was that he had been drugged. He stated: 'I think I went to sleep or passed out or something.' Defendant testified fully and in minute detail as to the events immediately before he left with the victim, Irene Gilbert, and regarding events that happened immediately after the killing. The testimony of several witnesses after defendant's return to Ed's tavern, which was less than one hour after the killing, was to the effect that defendant was not drunk.

Without detailing the lengthy testimony of numerous witnesses as to the conversation and demeanor of the defendant immediately before and after the killing,--including his story in minute detail given late that night and the next day to police officers, investigators and press men--, suffic it to say that while there was testimony defendant drank intoxicating liquor, there is nothing to show that there was an approach to a state of mind that would relieve him from responsibility for his acts or make it mandatory as a matter of law, in the absence of a request by defendant, that the trial court give an instruction on intoxication.

Defendant complains that the trial court should have instructed the jury that intoxication could reduce homicide from first degree murder to second degree murder. After all the evidence was in, defendant requested but six instructions, and in none of these requested instructions did he ask for one on intoxication. Prior to the time he submitted the instructions to the jury, the court called counsel for both sides into his chambers for the purpose of considering defendant's requested instructions. At this time the court went over and discussed with counsel not only defendant's requested instructions but the instructions the court intended to give to the jury, including the instruction on intoxication. Considerable time was spent by the court and counsel before the instructions were prepared in final form. The defendant made no objections to the instructions prepared by the court at that time nor when they were read to the jury, nor did he request that the court amplify any instructions given. The court, apparently out of an abundance of caution, gave an instruction on intoxication. A pertinent portion thereof reads: 'You are instructed that drunkenness may reduce a homicide from murder to manslaughter if it is so extreme as to prevent the existence of an intention to kill * * *.'

The defendant's theory throughout the trial of his case was that he had been drugged. In carrying out that theory he requested the court to give an instruction covering this defense. A pertinent portion of defendant's requested instruction reads: 'Among other things, the defendant raises the issue and makes the contention that at the time of the alleged commission of the three crimes charged in the two informations consolidated in this case that he had been administered some drug or substance without his knowledge through the artful contrivance of another for the purpose of facilitating the robbery of defendant. Defendant contends that from the time he got into the automobile with the deceased, he was in a stupor produced by said drug or substance which for the most part blanked out his memory and discretion and left him so that he did not know what he was doing and left him without memory as to what he had done during the interim. * * *'

While the requested instruction is not set out in full, it is quoted for the purpose of showing that the defense was not based upon intoxication...

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