State v. Diggs

• Decision Date: 15 May 1965
• Docket Number: No. 44114,44114
• Citation: 194 Kan. 812,402 P.2d 300
• Parties: STATE of Kansas, Appellee, v. Harvey Lee DIGGS, Appellant.
• Court: Kansas Supreme Court

Page 300

402 P.2d 300

194 Kan. 812

STATE of Kansas, Appellee, v. Harvey Lee DIGGS, Appellant.

No. 44114.

Supreme Court of Kansas.

May 15, 1965.

Syllabus by the Court

1. In a criminal action the defendant was found guilty of manslaughter in the second degree under G.S.1949 (now K.S.A.) 21-411, after having been charged with manslaughter in the first degree under G.S.1949 (now K.S.A.) 21-407--charging that the defendant struck several blows with his fists to the face and body of another person which caused his death five days later. On appeal the record is examined and it is held: The giving of an instruction by the trial court on manslaughter in the second degree under 21-411, supra, was clearly erroneous and the defendant is entitled to a new trial.

2. To constitute manslaughter in the second degree, under G.S.1949 (now K.S.A.) 21-411, there must be some refinement or excess of cruelty sufficiently marked to approach barbarity, and to make it especially shocking; and the unusual character of the manner displayed must stand out sufficiently peculiar and unique to create surprise and astonishment, and to be capable of discrimination as rare and strange.

3. The trial court in giving instructions to the jury must examine the evidence as a whole and then instruct upon such questions as the evidence naturally, reasonably and probably tends to prove. It cannot properly instruct as to any degree of the offense which the evidence does not tend to prove.

Harry L. Depew, Neodesha, argued the cause and was on the brief for appellant.

B. D. Watson, County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and Monte K. Heasty, Asst. County Atty., were with him on the brief, for appellee.

SCHROEDER, Justice:

This is a criminal action against the defendant under G.S.1949 (now K.S.A.) 21-407, manslaughter in the first degree, charging that the defendant struck several blows with his fists to the face and body of Harry Kepner which caused his death five days later. The case was tried to a jury which found the defendant guilty of manslaughter in the second degree, and appeal has been duly perfected to this court.

The controlling question is whether the jury was correctly instructed concerning manslaughter in the second degree under the evidence adduced in the case.

The portion of instruction No. 5 given by the trial court, which the appellant challenges as being clearly erroneous under the evidence, reads:

'No. 5.

'The sections of the statutes of Kansas, defining the crimes and offenses charged as above stated, and which will be pertinent to your consideration of the evidence in this case, insofar as they are applicable, read as follows:

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"G.S. [now K.S.A.] 21-411. Manslaughter in the second degree. 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."

In 1905 in the case of State v. Knoll, 72 Kan. 237, 83 P. 622, the conviction of a defendant of manslaughter in the second degree under section 16 of the crimes act (G.S.1901, § 2001), defining manslaughter in the second degree as above quoted by the trial court (21-411, supra), was reversed on the ground the evidence in the case was legally insufficient to establish a killing in an unusual manner.

There the deceased was a small man, not very stout, in poor health, and a hunchback. The defendant was a much larger and stronger man. The deceased had a revolver, but made no attempt to use it. The defendant, who was unarmed, defied the deceased to shoot, and then grappled him and bore him to the floor. While upon the deceased he choked him and beat him with his fists until they were bloody. After the encounter the deceased was found to have a bruised and bleeding eye, a bruise on the back of his head, bruises on his breast, and the tibia of his left leg was broken.

There the deceased was suffering from chronic alcoholism and fatty degeneration of the heart. In consequence of his injury he was put to bed, and by reason of the inactivity thus enjoined, and his previous diseased condition, self-infection resultant from the inability properly to throw off the natural secretions ensued; from which complication he died thirty-two days after his injury. While his physical condition prior to his injury would eventually have resulted in his death, the injury which he received hastened that result.

These facts were said to clearly show that a homicide was committed in the heat of passion without a design to effect death and without excuse or justification. But it was held the killing was not done "in a cruel and unusual manner." (p. 239, 83 P. p. 623.) In so holding the court said:

'There is, of course, no fixed standard, either of cruelty or of wontedness of manner, by which homicides may be measured, and yet the Legislature evidently attached much meaning to the distinction which it indicated by the use of the words quoted. By section 26 of the crimes act (Gen.Stat.1901, § 2011), the involuntary killing of another in the heat of passion by means neither cruel nor unusual is made manslaughter in the fourth degree. The punishment for manslaughter accomplished in a cruel and unusual manner is confinement and hard labor in the penitentiary for not less than three nor more than five years, while that for manslaughter by means neither cruel nor unusual is confinement and hard labor in the penitentiary not exceeding three years, or by imprisonment in the county jail for not less than six months. Cruelty and an unusual manner are therefore vital and essential elements of manslaughter in the second degree. To be such, however, they cannot be discovered in the common pitilessness and pain attending homicides generally, nor in the departure from ordinary use involved in turning common weapons or common instruments or methods of accomplishment to the killing of human beings. Fatal shootings and stabbings and poundings, mutilations of flesh and fractures of bones are all cruel enough and they cannot be said to represent the usual demeanor of men; hence something more must have been intended. Special stress and emphasis must be imposed upon the words used in order to accomplish the legislative purpose, and this may be done without departing from their ordinary signification since they are comparative terms susceptible of variant shades of meaning.

'It must be said, therefore, that in order to constitute manslaughter in the second degree, there must be some refinement or excess of cruelty sufficiently marked to approach barbarity, and to make it especially shocking; and the unusual character of the manner displayed must stand out as sufficiently peculiar and unique to create surprise and astonishment and tto be capable of discrimination as rare and strange.

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'In the facts of this case it is somewhat difficult to discover a sufficient viciousness of mind on the part of the defendant and a sufficiently grievous effect upon the deceased to amount to that cruelty which the statute requires. Although severe pain was inflicted without necessity, and although there was not merely an indifference to such pain, but a certain savage pleasure in causing it, still there is no more atrocity, and no more peculiar or extreme agony than might be exhibited in and result from any drunken brawl.

'Conceding, however, as upon the whole it is probably wisest to do, that the spectacle of a burly drunken bully crushing to the floor a weak and sickly cripple, snapping a bone, and mauling his flesh is too revolting to pass for less than that extreme cruelty which the law contemplates, the court is unable to say that the manner in which it was accomplished was ususual. Nothing but unaided bodily strength and energy, used according to the common custom of fighting men, appears. The fact that a leg was broken does not change the character of the means employed to break it. Death must always result to complete the crime, and if the deceased's back or neck had been broken or his body had been crushed by his fall, or as a result of his beating, the circumstance would not have changed the character of the offense, unless perhaps the force displayed had been so tremendous as to become phenomenal. Such an exhibition could scarcely occur with those staggering, wallowing, drunkards. If, therefore, the manner of the killing in this case could be said to present an instance of such aggravated cruelty as to amount to brutality, it nevertheless occurred after the ordinary manner in which brutishness is made manifest, and since both cruelty and unusualness must be proved the defendant was not shown to be guilty of the crime of manslaughter in the second degree. * * *' (pp. 239-242, 83 P. pp. 623-624.)

A recent case decided by the New York Court of Appeals in 1949 (People v. Vollmer, 299 N.Y. 347, 87 N.E.2d 291), cited State v. Knoll, supra, with approval, and held there was nothing "cruel and unusual" about the assault, for to be "cruel and unusual" the manner of a homicide must have in it some aggravating element, something out of the ordinary, something shocking or barbaric. It was said the phrase could not be applied where a flurry of blows from the defendant's fists sent the other man to his death.

The evidence in the instant case, using the appellee's version, which the appellant does not dispute, establishes the following:

Harvey Lee Diggs (defendant-appellant) resided at Coffeyville, Kansas, and was employed by the Western Union as a lineman. His wife, Irene, with whom he lived, drank heavily and was probably an alcoholic. Irene was acquainted with an...