State v. Clark, 47038

• Decision Date: 06 April 1974
• Docket Number: No. 47038,47038
• Citation: 214 Kan. 293,521 P.2d 298
• Parties: STATE of Kansas, Appellee, v. Richard Del Wayne CLARK, Appellant.
• Court: Kansas Supreme Court

Page 298

521 P.2d 298

214 Kan. 293

STATE of Kansas, Appellee, v. Richard Del Wayne CLARK, Appellant.

No. 47038.

Supreme Court of Kansas.

April 6, 1974.

Rehearing Denied May 29, 1974. See 522 P.2d 411.

Syllabus by the Court

1. As a general rule, an intent to kill cannot be inferred from an ordinary assault or beating with hands and fists but the rule is subject to an exception where the circumstances are unusual and extend beyond the ordinary battery.

2. While generally it is held that hands and feet are not to be classed as deadly weapons per se, it is recognized they may be a means likely to produce death, that one may commit murder by means of an attack with fists or feet, and that they may become deadly weapons when used in such manner and under such circumstances as are reasonably calculated to produce death.

3. Evidence of a vicious assult with the fists may be sufficient to support an inference of intent to kill.

4. It is the duty of a trial court to instruct the jury not only as to the crime specifically charged in the information but also with respect to such lesser offenses included therein as the evidence may justify, even though such instructions have not been requested or have even been the basis of objections.

5. The accused has the right to have his theory of the case presented to the jury under appropriate instructions, where there is support in the evidence therefor, even though the evidence may be weak and not conclusive and the testimony of the defendant alone, if tending to show a lesser degree of crime, is sufficient to require the court so to instruct.

6. Evidence of prior crimes is not admissible under the provisions of K.S.A. 60-455 to show an inclination, tendency or disposition on the part of a person accused, to engage in criminal conduct or to commit crimes presently charged.

7. The evidence is examined in an action wherein the defendant was convicted of murder in the second degree, and for reasons appearing in the opinion it is held the trial court erred (1) in failing to instruct on lesser included offenses and (2) in improperly instructing the jury as to the purposes for which a prior crime could be considered.

John F. Jorgensen of Dresie & Jorgensen, Wichita, argued the cause and was on the brief for appellant. Larry Kirby, Deputy County Atty., argued the cause, and Vern Miller, Atty. Gen., Keith Sanborn, Dist. Atty., and Stephen M. Joseph, Wichita, of counsel, were with him on the brief for appellee.

FONTRON, Justice:

The defendant, Richard Del Wayne Clark, was charged with murder in the first degree, in violation of K.S.A. 21-401. He was convicted of murder in the second degree, as defined in K.S.A. 21-402. He has appealed, alleging various errors.

The facts of this case reflect a sordid tale of an illicit relationship which exploded into the violence of a savage beating given Mrs. Elizabeth J. Cato by her paramour, resulting in her death. An attempt will be made to sketch the salient facts as briefly as possible.

As recounted by the defendant, he began the morning of the fatal day, February 23, 1970, by buying a bottle of whiskey instead of going to work. He followed this with another purchase of booze which he shared with a friend. About noon he repaired to the Cato residence, where Elizabeth was living alone at the time, her husband then being in the hospital. At the Cato home, Clark became embroiled in a quarrel with Elizabeth over his drinking. Following this argument Mrs. Cato walked to a nearby store for some cigarettes where a second argument occurred. On her way back home Elizabeth was picked up by a Mr. Phillips who, some two hours later, let her out of his car near her home, under the watchful and vengeful eye of Mr. Clark. A third argument ensued in the Cato house which will be described in more detail later. At this point it will suffice to say the fight occurred early in the afternoon. After the violent affray, Clark apparently tried to wash the blood off of his girl friend and attempted to clean her up. He left her place around six o'clock on the pretext he was going to work and that he would return for a late supper. He did not go to work, however, but drove around, drinking and stopping a place or two, and about ten thirty or so he returned to the house to find Mrs. Cato stretched out on the couch, dead. She had died, so the autopsy revealed, from edema or internal bleeding as a result of her grievous injuries.

The defendant's first three points relate in one way or another to the sufficiency of the evidence. He contends the evidence was insufficient to establish malice or intent to kill and that his motion for a directed verdict of acquittal as to murder in either degree should have been sustained.

Clark points to the fact no weapon was found at the scene or introduced at the trial, and he argues that as a general rule an intent to kill cannot be inferred from an assault or beating with the hands and fists. Under ordinary circumstances this appears to be the rule. (See 22 A.L.R.2d Anno: Killing Without Weapon-Intent-Malice, p. 854, et seq.) However, where conditions are beyond the ordinary or usual, the authorities recognize an exception, as noted in the A.L.R. annotation at pp. 856, 857:

'While it is generally held that hands and feet are not to be classed as deadly weapons per se, it is recognized that they may be a means likely to produce death, that one may commit murder by means of an attack with the fists or feet, and that they may become 'dealy weapons' when used in such manner and in such circumstances as are reasonably calculated to produce death.'

We cannot agree that the record is barren of evidence from which malice or intent to kill may be inferred. For a number of reasons we view the evidence as sufficient to support the verdict. Dr. Eckert, a medical doctor specializing in forensic pathology, conducted the autopsy held in connection with the death. He testified as to the massive injuries inflicted on the deceased, the wounds, the fractures, the deep bleeding, the swelling of tissues and the final edema which terminated in her death. It was his opinion that the injuries were not administered at one time but could have extended over a period of from thirty minutes to three or four hours; that they could have been caused by a knee, a fist, an arm or forearm, a leg or a foot. There were abrasions, he testified, similar to those he had seen on people who had been stomped on.

It is no exaggeration to say there is evidence to indicate a brutal beating, brutal in the sense that it transcended the usual assault with fisticuffs and deteriorated into a slugging, kicking, or stomping episode of extended duration. A case with similar overtones is reported in 163 Kan. 225, 181 P.2d 473, State v. McCombs. McCombs was prosecuted and convicted under the provisions of G.S.1935, 21-435, the mayhem statute. He contended, on appeal, that the trial court erred in overruling his demurrer to the evidence. In rejecting that claim this court said:

'. . . Appellant's vicious assault with his hands, fists and feet was terminated only after he had beaten, tackled and thrown Cloyd onto the cement sidewalk, kicked him and left him helpless and unconscious. The evidence was entirely sufficient to go to the jury on the charge of assault with intent to kill.' (p. 229, 181 P.2d p. 476.)

The holding in McCombs accords with the general rule that evidence of a vicious assault with the fists is sufficient to support an inference of intent to kill. (Carson v. Commonwealth, 188 Va. 398, 49 S.E.2d 704; Commonwealth v. Dorazio, Appellant, 365 Pa. 291, 74 A.2d 125; Pine v. People, 168 Colo. 290, 455 P.2d 868.)

There is other evidence from which an intent to kill may reasonably have been deduced. In a telephone conversation between the defendant and Elizabeth's mother, Mrs. Ford, about 3:00 or 3:30 in the afternoon, the defendant said, according to Mrs. Ford, that 'I beat the hell out of her' and that when Elizabeth asked Clark why he was telling that to her mother, the defendant told her 'to shut up because when he got off the telephone he was going to finish her.' Between 5:00 and 5:30 Mrs. Cato also made a phone call to Mr. Phillips, her companion of an earlier hour that afternoon, and said 'Paul, come here, help', before Clark took over the telephone.

We conclude there was sufficient competent evidence to take the case to the jury on the charge of murder, and that the verdict of murder in the second degree is adequately supported.

More serious questions are raised in the area of instructions. In instruction 7, the trial court informed the jury that the information charged the defendant with murder in the first degree and that this charge included murder in the second degree, manslaughter in the first degree, manslaughter in the second degree and manslaughter in the fourth degree. The court then proceeded to instruct on first degree murder, second degree murder, first degree manslaughter under 21-407, and second degree manslaughter as defined in 21-412. No instruction whatever was given on fourth degree manslaughter.

The defendant requested instructions, in addition to those given, on (1) second degree manslaughter as defined in K.S.A. 21-411, (2) fourth degree manslaughter under K.S.A. 21-419, and simple assault and battery. The foregoing manslaughter statutes read as follows:

K.S.A. 21-411. 'The killing of a human being without a design to effect death, in the heat of passion, but in a cruel and unusual manner, unless it be committed under such circumstances as to constitute excusable or justifiable homicide, shall be deemed manslaughter in the second degree.'

K.S.A. 21-419. 'The involuntary killing of another by a weapon, or by means neither cruel nor unusual, in the heat of passion, in any cases other than justificable homicide, shall be deemed manslaughter in the fourth degree.'

It is the duty of a trial court to...