State v. Gloyd
| Decision Date | 10 December 1938 |
| Docket Number | 33963. |
| Citation | 148 Kan. 706,84 P.2d 966 |
| Parties | STATE v. GLOYD. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Where information charged defendant with manslaughter in the first degree and he was convicted of manslaughter in the fourth degree, refusal to quash information on ground that it failed to fully charge the higher degree as defined by statute was not reversible error. Gen.St.1935, 21-407, 21-420.
"Negligent homicide," as defined in uniform act regulating traffic is not "manslaughter in some other degree" within meaning of statute providing that every killing which would be manslaughter at common law and is not declared in that article to be "manslaughter in some other degree" should be deemed "manslaughter in the fourth degree." Gen.St.1935, 21-420; Laws 1937, c. 283, § 29.
In prosecution of motorist on a charge of manslaughter in the first degree for causing the death of the occupant of another automobile, court did not under the facts improperly instruct on manslaughter in the fourth degree. Gen.St.1935, 21-407 21-420.
In prosecution for manslaughter in the first degree, where jury under the evidence might naturally and probably have convicted defendant of "negligent homicide" as defined in the uniform act regulating traffic, failure to instruct thereon required reversal of conviction for manslaughter in the fourth degree. Gen.St.1935, 21-407 21-420, 62-1447; Laws 1937, c. 283, § 29.
In prosecution of motorist on a charge of homicide in the first degree for allegedly causing the death of the occupant of another automobile, where there was no evidence that occupant was negligent or that driver was negligent prior to collision, instruction on contributory negligence was properly refused.
The county attorney was not required to deliver to accused and his counsel a transcript of testimony taken at preliminary hearing, notwithstanding the evidence was taken in shorthand by the court reporter, since transcript was nevertheless not an official document.
1. Where a defendant was tried on an information charging manslaughter in the first degree and was convicted of manslaughter in the fourth degree, the refusal of the trial court to sustain a motion to quash the information because it failed to fully charge the higher degree became immaterial and on appeal does not constitute reversible error.
2. The legislature, by the enactment of Laws 1937, ch. 283, sec. 29, defining and denouncing "negligent homicide" did not declare an offense included in G.S.1935, 21-420, reciting: "Every other killing *** which would be manslaughter at the common law, and * * is not declared in this article to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree."
3. The record in a prosecution for the crime of manslaughter examined, and it is held the trial court did not err:
4. The record in the above case further examined, and held that under the evidence a state of facts was shown under which the jury might naturally and probably have convicted of the lesser offense of negligent homicide, and the failure of the trial court to instruct on such lesser offense constitutes reversible error.
Appeal from District Court, Saline County; Roy A. Smith, Judge.
Glen Gloyd was convicted of manslaughter in the fourth degree, and he appeals.
Reversed, and cause remanded.
Ralph Knittle, of Salina, for appellant.
Clarence V. Beck, Atty. Gen., C. Glenn Morris, Asst. Atty. Gen., and C. L. Clark, Co. Atty. (David Ritchie, both of Salina, of counsel), for appellee.
The defendant was charged with the crime of manslaughter in the first degree and from a conviction of the crime of manslaughter in the fourth degree he appeals to this court assigning certain errors which are hereafter discussed.
Without attempting a full statement of the facts, it appears that on January 31, 1938, Emilie Hoeduk and her husband were proceeding eastwardly on U.S. Highway No. 40 in an automobile driven by her husband. A short distance behind was another car driven by one Pearl Martin. One Ralph Snowball was driving a car westwardly on the same highway. Shortly before these cars would have passed each other defendant, driving at a high rate of speed, came up behind the Martin car and attempted to pass it and the Hoeduk car, when the Hoeduk car was close to the Snowball car. In avoiding the Snowball car, defendant cut in front of and collided with the Hoeduk car in such manner that it was forced off the highway into the ditch, and after it proceeded a short distance it struck a telephone pole, turned over, and Mrs. Hoeduk sustained injuries from which she shortly died. There was evidence the defendant was intoxicated at the time the above events transpired.
Defendant's first assignment is that the trial court erred in not sustaining his motion to quash the information for six asserted reasons, the only one now urged being that the information omitted the words "without a design to effect death" found in the statute defining manslaughter in the first degree. G.S.1935, 21-407. As defendant was convicted of a lesser offense, that is, manslaughter in the fourth degree as defined in G.S.1935, 21-420, it is apparent that any defect to fully charge the higher degree becomes immaterial and the failure to quash is not reversible error. See State v. Bailey, 107 Kan. 637, 193 P. 354, where an analogous situation is discussed.
Defendant next contends it was error for the trial court to deny his motion in arrest of judgment. His contention is that the legislature in the enactment of Laws 1937, ch. 283, sec. 29, hereafter called "uniform act regulating traffic", defining "negligent homicide" and providing penalties therefor, declared the offense "manslaughter in some other degree", and that therefore defendant could not be guilty of manslaughter in the fourth degree as defined by G.S.1935, 21-420, reading: "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."
The gist of his argument is that if a driver of an automobile "in reckless disregard of the safety of others" kills another he is guilty of negligent homicide under the uniform act regulating traffic, that that is a degree of manslaughter and is excepted by the definition of manslaughter in the fourth degree, under which he was convicted.
This leads us to inquire whether "negligent homicide", as provided in the uniform act regulating traffic, is manslaughter of some other than the fourth degree. It is to be observed that the 1937 act does not use the word "manslaughter" nor specify any degree. Ordinarily, homicide, unless excusable or justifiable, is divided into two classes, murder and manslaughter. Under the facts of this case it would not be murder. Under the decision in State v. Custer, 129 Kan. 381, 282 P. 1071, 67 A.L.R. 909, relied on by the appellant, it might have been manslaughter at common law. In the opinion in that case, the history of our statutes with reference to manslaughter is referred to and an analysis is made of the elements of that crime. That case, however, is not decisive of the question now before us.
First it may be observed that the statutory language of the act defining manslaughter in the fourth degree includes "or is not declared in this article to be manslaughter in some other degree". The question arises whether, even though it be conceded the uniform act regulating traffic creates a degree of manslaughter, it is in any manner included in ...
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