State v. Custer

• Decision Date: 07 December 1929
• Docket Number: 28,211
• Citation: 282 P. 1071,129 Kan. 381
• Parties: THE STATE OF KANSAS, Appellee, v. PAUL CUSTER, Appellant
• Court: Kansas Supreme Court

282 P. 1071

129 Kan. 381

THE STATE OF KANSAS, Appellee, v. PAUL CUSTER, Appellant

No. 28,211

Supreme Court of Kansas

December 7, 1929

Decided July, 1929.

Appeal from Seward district court; GEORGE L. LIGHT, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1.HOMICIDE--Manslaughter--Killing by Act, Procurement or Culpable Negligence--Manslaughter at Common Law as Element of Offense.Under the statute providing that "every other killing of a human being, by the act, procurement or culpable negligence of another, which would be manslaughter at the common law," etc. (R. S. 21-420), the offense must be one which would have constituted manslaughter at the common law when the statute first appeared in the criminal law of Kansas in 1855.

2.SAME--Manslaughter at Common Law--Necessity for Reckless Conduct.At common law, when death resulted from negligent conduct in doing a lawful act, it was necessary, in order to constitute manslaughter, that the conduct should be reckless.

3.SAME.The term "reckless" defined.

4.SAME--Manslaughter at Common Law--What Constitutes.If death results from unlawful conduct amounting to misdemeanor denounced by statute for the purpose of protecting human life and safety, and the death would not have resulted except for the unlawful conduct, the killing would be manslaughter at common law.

5.SAME--Effect of Contributory Negligence.Contributory negligence of the deceased is a circumstance to be considered in determining whether death was or was not caused by the unlawful conduct, but is not of itself a defense to common-law manslaughter.

M. F. Cosgrove, of Topeka, and John C. King, of Liberal, for the appellant.

William A. Smith, attorney-general, R. O. Mason, assistant attorney-general, H. A. Gaskill, Charles M. Tucker and Charles Vance, all of Liberal, for the appellee.

OPINION

BURCH, J.:

Defendant appeals from conviction of manslaughter in the fourth degree on an information charging that while he was driving an automobile on a public highway at an unlawful rate of speed and in a culpably negligent manner his automobile struck and killed a man.The principal question is whether the court properly instructed the jury.

The accident occurred on a graveled highway leading north from the end of the pavement on Kansas avenue in Liberal.A quarter of a mile north of the end of the pavement is a crossroad.C. O. Cohenour left Liberal between ten and eleven o'clock on a clear night, in a Chevrolet automobile having no top, and drove northward on the highway.With him were Clyde Wood and another man.The left rear tire went down, and the automobile was stopped at a point about 260 yards north of the end of the pavement.The right wheels were a foot and a half or two feet from the shoulder of the road.Cohenour and Wood got out.Wood took the jack and got down on his hands and knees to adjust the jack under the rear axle.Cohenour commenced to remove the taps which held the tire on.The front of the car faced northward.The car had no red light at the rear, and Cohenour testified at the coroner's inquest he could not remember whether his headlights were showing.Custer, driving a Buick master-six sedan, came from the south, struck the Chevrolet, and Wood was killed.

Custer testified that, as he was driving northward, a car coming at a rapid rate of speed approached from the north.That car was followed by a Ford coupe with bright lights.As the first car approached, Custer "dimmed" his headlights--that is, tilted them downward, which affected range only and not intensity of light--and kept them so for the benefit of the Ford driver.The first car raised a cloud of dust, the Ford lights blinded Custer, and he was unable to see Wood until within ten or fifteen feet of him.Custer testified he was driving about thirty-five miles per hour, possibly a little more, but not more than forty miles per hour.

There was testimony that before the accident occurred a Buick car was coming from the north, but the accident occurred before that car reached the crossroad.There was testimony that a Ford coupe on the crossroad approached the intersection from the west, and on reaching the intersection turned south on the gravel road, but the accident occurred before the Ford coupe reached the intersection and turned south.There was testimony that at the time of the accident Custer was driving at a much greater rate of speed than forty miles per hour.

The court gave the jury instructions, which are appended hereto.

The section of the statute under which defendant was convicted is a part of the article of the crimes act dealing with manslaughter.The function which the section performed was described in the opinion in the case of State v. Murray,83 Kan. 148, 110 P. 103:

"In the preparation of the crimes act the legislature segregated certain homicides, committed under specified conditions, and called them justifiable.It did the same with certain other homicides, committed under specified conditions, and called them excusable.By this means certain specific killings are exempt from punishment.Conceiving that there may be other killings which ought not to be punished, the legislature then exempted all other homicides which were justifiable or excusable under the common law. . . .

"The legislative intention was to punish all homicides which are not justifiable or excusable, either under the statute or under the common law.In providing a scheme of punishments the same method was adopted as in the case of exemptions.A homicide committed under certain specifically enumerated conditions was made punishable as murder in the first degree.Another kind of killing under certain other specific conditions was made punishable as murder in the second degree.Various kinds of homicides, the elements of which are all named, constitute manslaughter in the first degree, and so with manslaughter in the second, third and fourth degrees.Understanding very well that it had not, in two degrees of murder and four degrees of manslaughter, provided for all punishable killings, the legislature then undertook by section 27 of the crimes act to cover all those which had not been specifically provided for.That section reads as follows:

"'Every other killing of a human being, by the act, procurement or culpable negligence of another, which would be manslaughter at the common law, and which is not excusable or justifiable, or is not declared in this article to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree.'[R. S. 21-420.]"(p. 157.)

The quoted section appears in the acts of the first territorial legislature(Stats. Kan.Ter. 1855, ch. 48, § 22), was reenacted by the territorial legislature of 1859, and remained in force after the state was admitted to the union until 1868.In that year the section became section 27 of chapter 31 of the General Statutes of Kansas, and has ever since remained in force.

The section was originally taken from the crimes act of the state of Missouri(Rev. Stat. Mo. 1835, title Crimes and Punishments, art. II, § 20).A similar section appeared in the Revised Statutes of.New York, 1829, part IV,title II, article first, § 19.

The early crimes acts of Missouri and New York have sections which are equivalent to the section of our territorial crimes act which is now R. S. 21-407, and which reads as follows:

"The killing of a human being without a design to effect death, by the act, procurement or culpable negligence of another, while such other is engaged in the perpetration or attempt to perpetrate any crime or misdemeanor, not amounting to a felony, in cases when such killing would be murder at the common law, shall be deemed manslaughter in the first degree."(R. S. 21-407.)

The early crimes acts of Missouri and New York contained sections relating to manslaughter resulting from operation of steamboats, which came into our law.One provision was that if a person navigating a boat for gain should "willfully or negligently" receive so many passengers that the boat should sink and some one be drowned the navigator would be guilty of manslaughter in the third degree.Another provision was that if the captain in charge of the boat, or the engineer in charge of the boiler, should, from "ignorance or gross neglect," or for the purpose of racing, create or allow to be created such an undue quantity of steam as to burst the boiler, and some one should be killed the captain or engineer would be guilty of manslaughter in the third degree.(Gen. Stat. 1915, §§ 3382,3383.)Other provisions related to safety of navigation, but those referred to are sufficiently illustrative.The result is that criminal codes used, in sections relating to different degrees of manslaughter, the expressions "culpable negligence,""gross negligence," and "negligence."

Early state statutes simply provided a punishment for manslaughter, and left manslaughter to be defined by common law.(Rev. L. Mo. 1825, title Crimes and Misdemeanors, ch. I, § 6.)When statutes dealt with the crime, and divided it into degrees according to amount of culpability, special cases found necessary to meet modern exigencies were added.In some instances modes of killing which would have been murder at common law were reduced to manslaughter.In general, however, the statutes conformed to common-law principles, and so far as they did so merely codified the common law.The catch-all section, our R. S. 21-420, did more than that.It clearly sent us directly to the common law for definition of certain manslaughters.

The reference method of legislation was condemned by the New York commission appointed pursuant to a statute of 1857 to prepare a political code, a civil...