State v. Cunningham
| Decision Date | 06 March 1926 |
| Docket Number | 26,379 |
| Citation | 243 P. 1006,120 Kan. 430 |
| Parties | THE STATE OF KANSAS, Appellee, v. LLOYD CUNNINGHAM, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1926.
Appeal from Anderson district court; HUGH MEANS, judge.
Judgment reversed and cause remanded.
SYLLABUS BY THE COURT.
1. HOMICIDE--Instructions--Degree of Offense. In a prosecution upon a charge of murder where there is substantial evidence tending to show that the offense committed falls within one or more of the degrees of manslaughter, it is the imperative duty of the court upon request, in charging the jury, to state fully the law relating to such inferior degrees of the offense.
2. SAME--Instructions--Degree of Offense--Effect of Inconclusive Evidence. The fact that the court may deem the evidence supporting the minor degree to be weak and inconclusive, does not warrant it in refusing an instruction on that issue. The credibility and weight of the evidence are questions for the jury and not a matter of law for the decision of the court.
J. W Mertz and Manford Schoonover, both of Garnett, for the appellant.
C. B. Griffith, attorney-general, Roland Boynton, assistant attorney-general, and Bert L. Woods, county attorney, for the appellee.
Lloyd Cunningham was charged with murder in the first degree and convicted of murder in the second degree. The only question presented on his appeal is an objection to the refusal of the court to define certain degrees of manslaughter and to instruct the jury in regard to the law relating to those grades of homicide. The defendant struck George Parker on the breast with a pocketknife and he died from the result of the cutting. It is contended that the assault was committed on the spur of the moment, in the heat of passion and without intent to kill, and that therefore instructions on the third and fourth degrees of manslaughter were required. The statute relating to these degrees of manslaughter reads:
"The killing of another in the heat of passion, without design to effect death, by a dangerous weapon, in any case except wherein the killing of another was justifiable or excusable, shall be deemed manslaughter in the third degree." (R. S. 21-413.)
The definition of manslaughter in the fourth degree is as follows:
"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 justifiable homicide, shall be deemed manslaughter in the fourth degree." (R. S. 21-419.)
It is made the duty of the court in charging the jury, to state to them all matters of law which are necessary for their information in giving their verdict. (R. S. 62-1447.) The rule in homicide cases has been repeatedly declared that the court should instruct the jury not only on the evidence adduced by the prosecution in support of the higher offense, but also upon the whole evidence and especially upon the lower degrees of the offense, if there is substantial evidence applicable to the lower degrees. The instructions should cover every issue or theory in the case which has support in the evidence. Whether the evidence tended to support the lower degrees of the offense appears to the court to be weak and unsatisfactory, the accused is nevertheless entitled upon request to have the issue and the effect of the evidence submitted to the jury. Among the numerous cases relating to the rule is State v. Patterson, 52 Kan. 335, 34 P. 784, in which it was said:
"Where there is even slight evidence that the offense committed may have been of a lower degree than the one charged, it is proper for the trial court to give to the jury the law of such inferior offenses." (Syl. P 7.)
In State v. Buffington, 66 Kan. 706, 72 P. 213, it was held to be reversible error to refuse an instruction as to the lower degrees upon which there was support in the evidence, and that such an instruction was required although the evidence as to the lower grades might be regarded by the court to be weak, unsatisfactory and inconclusive. See, also, State v. Curtis, 93 Kan. 743, 145 P. 858, and cases cited therein.
The force and credibility of the evidence touching the degrees of manslaughter are questions for the jury, and when the court for itself determines the credibility and weight of such evidence, it is invading the province of the jury. Where there is no substantial testimony applicable to the lower degrees, and all of it taken together shows that the offense if committed was clearly of the higher degree, instructions relating to the inferior ones are not necessary. In some cases where the evidence was such that the court...
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