State v. Cates, 48972

• Decision Date: 01 April 1978
• Docket Number: No. 48972,48972
• Citation: 576 P.2d 657,223 Kan. 724
• Parties: STATE of Kansas, Appellee, v. Willie L. CATES, Appellant.
• Court: Kansas Supreme Court

Page 657

576 P.2d 657

223 Kan. 724

STATE of Kansas, Appellee, v. Willie L. CATES, Appellant.

No. 48972.

Supreme Court of Kansas.

April 1, 1978.

Syllabus by the Court

The record is examined on appeal from a conviction of murder in the second degree (K.S.A. 21-3402) and it is held : (1) The evidence introduced at the trial was not such as would require the trial judge to give instructions to the jury on uncharged lesser offenses of voluntary manslaughter (K.S.A. 21-3403) and of involuntary manslaughter (K.S.A. 21-3404), (2) the trial court did not err in denying defendant's motion for a change of venue (K.S.A. 22-2616), and (3) the trial court properly overruled defendant's motion for judgment of acquittal (K.S.A. 22-3419).

Dale V. Slape of Sherwood & Slape, Wichita, argued the cause and was on the brief for appellant.

Harold T. Pickler, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., Vern Miller, Dist. Atty. and Stuart W. Gribble, Asst. Dist. Atty., were on the brief for appellee.

FROMME, Justice:

Willie L. Cates was charged with premeditated and felony murder (K.S.A. 21- 3401), and unlawful possession of a firearm after conviction of a felony (K.S.A. 21-4204(1)(b ).) A jury found him guilty of murder in the second degree (K.S.A. 21-3402) and acquitted him of the other charges. He appeals and raises four points of alleged error. Two of the points concern the alleged existence of evidence at the trial which would require the trial judge to give instructions on either involuntary manslaughter or voluntary manslaughter or both.

"In a criminal prosecution where the offense charged may include some lesser offense it is the duty of the trial court, under the provisions of K.S.A.1972 Supp. 21-3107(3), to instruct the jury, not only as to the offense charged but as to all lesser offenses of which the accused might be found guilty under the information and upon the evidence adduced." (State v. Warbritton, 211 Kan. 506, Syl. P 1, 506 P.2d 1152 (1973). See also State v. Weyer, 210 Kan. 721, Syl. P 1, 504 P.2d 178 (1972).)

The evidence at the trial indicates a feud developed between the members and friends of two families in Wichita, which feud lasted four days and culminated in the death of Mike Fair on April 5, 1976, from a gunshot wound to the head. The two groups which carried on this vendetta will be referred to as the Cates group and the Fair group. The feud arose when a member of the Fair group attempted to collect $10.00 owed by a member of the Cates group. A profane argument erupted and ended in a standoff. The following morning at 1:00 a. m. some members of the Fair group proceeded to the home of one of the members of the Cates group, threw a rock on the porch and challenged those inside to a fight. Willie Cates came out on the porch but declined the invitation and retreated inside the house as shots were fired.

After Willie Cates was unsuccessful in two different attempts at borrowing a handgun, he proceeded to make what is referred to as a "zip gun". The homemade "zip gun" was fashioned by the defendant and a friend from a short piece of pipe, a piece of wood, two springs and a nail. It was capable of firing a .22 long rifle cartridge. Thereafter the defendant placed the homemade gun in a paper sack and carried it with him wherever he went.

The day after the Fairs challenged the defendant to a fight, the defendant located a blue Rambler automobile owed by a member of the Fair group. In retaliation for the challenge by the Fairs, the defendant proceeded to break the car windows. That evening Mike Fair, the murder victim, and his brother assaulted a member of the Cates group in retaliation for the damage to the blue Rambler automobile and, in a later incident, threatened other members of the Cates group.

The next morning at 1:30 a. m. a fire bomb was thrown at the home of one of the Cates group by the brother of Mike Fair, and windows were broken in a Volkswagen parked near the house that was fire-bombed.

Later that morning the defendant was advised of these recent events and he decided to go the Service Auto Glass Company where Eugene Fair, the brother of the victim, worked. Four members of the Cates group, two men and two women, drove to the Service Auto Glass Company. They noticed a car owned by Barbara Fair parked in the parking lot east of the Service Auto Glass Company. They parked their car behind the Fair car.

We will recite defendant's version of the events that transpired. Defendant got out of the car and picked up the homemade "zip gun" which was in the paper sack lying in his lap. He approached the Fair car while carrying the paper sack in his left hand. When he reached the car he saw Mrs. Fair in the back seat with a man. He opened the backdoor of the car with his right hand. Mrs. Fair reached for her purse, and the defendant told her to get away from her purse. She complied. He believed she was reaching for a gun.

The defendant then directed his attention to the victim, Mike Fair. Mike Fair was seated in the front seat. He was in the act of retrieving a small-caliber pistol from under the seat. Mike Fair pointed a pistol at the defendant. In self-defense the defendant switched the paper sack containing the "zip gun" to his right hand, lunged inside the back seat and swung at Fair with his right hand. At the same time he ducked behind the back of the seat. The "zip gun" which was in the defendant's right hand struck the victim in the face and the gun discharged. Defendant testified he was holding the paper sack with the gun inside and that his hand was not inside the sack where the firing mechanism was located. He testified the discharge of the "zip gun" and the killing of Mike Fair were unintentional.

Considering this testimony we must first determine if the trial judge was required to give an instruction on involuntary manslaughter.

"Involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner. As used in this section, an 'unlawful act' is any act which is prohibited by a statute of the United States or the state of Kansas or an ordinance of any city within the state which statute or ordinance is enacted for the protection of human life or safety." (K.S.A. 21-3404.)

Taking the defendant's testimony at face value the act of striking and killing the victim was done unintentionally and without malice. To constitute involuntary manslaughter under the statute the killing must have occurred in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act in an unlawful or wanton manner.

At this point it is well to consider the dilemma facing the trial judge when he gave the instructions in the present case. The defendant was charged not only with murder but also with unlawful possession of a firearm with a barrel less than twelve (12) inches long. There was evidence that defendant had previously been found guilty of a felony in Sedgwick County, and there was considerable evidence bearing on the size of the gun barrel. There was testimony from which a jury might well have found the defendant guilty of possessing the prohibited gun with a barrel less than twelve inches in length, a felony. This gun was the instrument used which resulted in Mike Fair's death. As the case turned out defendant was acquitted of the firearms charge. The jury, no doubt, found the barrel of the gun was in excess of twelve inches. Therefore, the possession of the gun by defendant did not amount to a felony in the minds of the jurors.

Adding to the judge's dilemma we find the following discussion on the record concerning the giving of the instruction on involuntary manslaughter.

"MR. REGIER: Other than that I have no objection to the instructions.

"THE COURT: Defendant Cates.

"MR. MOORE: We have no objection, Your Honor.

"THE COURT: The state of Kansas.

"MR. RUMSEY: There are two things that concern me about the instructions, frankly. I think that there ought to be a lesser included offense for Involuntary Manslaughter. And my concern about having that, I think, is the Supreme Court of our State's ruling in the State of Kansas versus Gregory at 218 Kansas 180. I don't agree with the court's ruling, the Supreme Court's ruling in that case but it seems to be something that, according to that rule, we ought to do here.

"I know that the Court currently feels that the evidence does not support an Involuntary Manslaughter theory. And I agree with the Court's ruling here, but this Supreme Court seems to be off on some other kind of theory in that case. I think we have to have that.

"I also understand that neither defendant neither attorney for the defendant wants to have Involuntary Manslaughter and they feel that there is no evidence to support an instruction on that verdict.

"I also think that the law of our state requires when someone is charged with Unlawful Possession of a Firearm that there be an instruction about possession. I know that the argument can be made that because the evidence is undisputed that he possessed it that there's no need to instruct about possession.

"But, again, I know that our court has ruled, our Supreme Court has ruled that the possession instruction is a necessary instruction for that kind of crime.

"THE COURT: Does either defense counsel want to be heard before the Court rules?

"MR. MOORE: I think Mr. Rumsey, Your Honor, has fairly well outlined our thinking on it, and that is, there is simply no evidence of any kind which would support an instruction to Involuntary Manslaughter."

There can be little doubt under K.S.A. 21-3107(3) as construed in State v. Warbritton, supra, and State v. Weyer, supra, the court must evaluate the evidence and determine if an instruction on involuntary manslaughter should be given regardless of the wishes of...