State v. Choens, 48747

• Decision Date: 15 July 1978
• Docket Number: No. 48747,48747
• Citation: 224 Kan. 402,580 P.2d 1298
• Parties: STATE of Kansas, Appellee, v. Milton W. CHOENS, Appellant.
• Court: Kansas Supreme Court

Page 1298

580 P.2d 1298

224 Kan. 402

STATE of Kansas, Appellee, v. Milton W. CHOENS, Appellant.

No. 48747.

Supreme Court of Kansas.

July 15, 1978.

Syllabus by the Court

1. In the field of unintentional homicide by operation of a motor vehicle, the specific statute, vehicular homicide (K.S.A. 21-3405), is concurrent with and controls the general statute on involuntary manslaughter (K.S.A. 21-3404) except where the acts of the accused constitute wanton conduct. Accordingly, the issue in all such cases where the charge is involuntary manslaughter becomes whether or not the conduct of the defendant was wanton as defined in K.S.A. 21-3201(3).

2. The law as declared in the overruling decision of State v. Makin, 223 Kan. 743, 576 P.2d 666 (1978), shall be given retroactive application to all similar cases pending in the courts of this state on April 1, 1978, and to all cases filed thereafter regardless of when the causes of action accrued.

Olin Stansbury, El Dorado, argued the cause and was on brief for appellant.

Geary N. Gorup, County Attorney, argued the cause, and Curt T. Schneider, Atty. Gen., was with him on brief for appellee.

SCHROEDER, Chief Justice:

This is an appeal in a criminal action from a jury verdict which found Milton W. Choens (defendant-appellant) guilty of involuntary manslaughter (K.S.A. 21-3404). Various grounds for reversal are asserted on appeal.

The Kansas Court of Appeals affirmed the trial court in State v. Choens, (case No. 48,747, 573 P.2d 642, unpublished opinion filed December 23, 1977). We granted a petition for review based upon our opinion of State v. Makin, 223 Kan. 743, 576 P.2d 666 (1978). Our opinion in Makin was filed April 1, 1978; thus, the Court of Appeals was not aware of that decision at the time it made its ruling.

The facts are not seriously in dispute. On April 3, 1976, an automobile driven by the appellant struck a car driven by Lucille Gray on the Landfill Road located just outside El Dorado, Kansas. Oscar M. Gray, a passenger in the car, sustained extensive injuries to his oral cavity and died the next day of cardiac failure. The pathologist who performed the autopsy, Dr. Soon E. Kim, testified the cause of death was heart failure induced by aspiration of blood.

The state's information charged the following:

"That in Butler County, Kansas, on or about the 3rd day of April, 1976, MILTON W. CHOENS did unintentionally kill a human being, to-wit: Oscar M. Gray, without malice, while in the commission of an unlawful act not amounting to a felony, to-wit: driving left of center, K.S.A. 8-1514, and/or speeding, K.S.A. 8-1336, by colliding with a vehicle occupied by Oscar M. Gray. (K.S.A. 21-3404; K.S.A. 21-4501(e))"

No wantonness was alleged.

At the trial the appellant contended the accident resulted from a blowout of his left front tire. Robert B. Lehnherr, deputy sheriff of Butler County, Kansas, testified it was his opinion the appellant's speed exceeded 70 miles per hour based upon interviews, skidmarks, and tests run to compute speed at the scene of the accident. He stated the tire flattened on impact with the Gray vehicle and did not blow out.

Miss Gray testified she was driving approximately 35 miles per hour when she saw the appellant's car coming directly toward her. She said she tried to get to a ditch in order to avoid a collision when the accident occurred. She further testified her father, a man 80 years of age, was in good health but had recently suffered from high blood pressure.

The trial court instructed the jury on both involuntary manslaughter and vehicular homicide following the language of PIK, Criminal, §§ 56.06 and 56.07 (Revised). The jury found the appellant guilty of involuntary manslaughter. The Court of Appeals held: The trial court did not abuse its discretion (1) in allowing Robert B. Lehnherr to give his opinion as to the speed of the appellant's vehicle immediately prior to the impact; (2) in excluding evidence of the prior posted speed limit; and (3) in finding sufficient evidence to support the verdict.

On appeal to this court the appellant first contends that State v. Makin, supra, should be applied retroactively to all involuntary manslaughter cases pending at the time the decision was rendered on April 1, 1978. We agree.

While no criminal case in Kansas deals specifically with the retroactive-prospective application of a later overruling decision, various civil cases discuss the issue at length. (See Vaughn v. Murray, 214 Kan. 456, 521 P.2d 262 (1974); See also Kansas City Millwright Co., Inc. v. Kalb, 221 Kan. 658, 670, 562 P.2d 65 (1977); Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969); and Crigler v. Shepler, 79 Kan. 834, 101 P. 619 (1909).) Suffice it to say the arguments for retroactive application are adequately presented in these cases, and it would serve no useful purpose to restate them here.

As a general rule a conviction is not considered final until the judgment of conviction has been rendered, the availability of an appeal has been exhausted, and the time for any rehearing or final review has passed. (State v. Heath, 222 Kan. 50, 54, 563 P.2d 418 (1977) and cases cited therein.) In the present case the appellant's conviction was appealed to this court from the lower court for final review on March 31, 1978, and the rules enunciated in Makin directly apply. Objections to instructions on involuntary...