State v. Goetz
| Decision Date | 10 November 1951 |
| Docket Number | No. 38450,38450 |
| Parties | STATE v. GOETZ. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
The record examined in a criminal action, and held, the trial court erred in sustaining the defendant's motion that he be discharged.
Max A. Campbell, County Atty., Quinter argued the cause, and Harold R. Fatzer, Atty. Gen., and C. Harold Hughes, Asst. Atty. Gen., on the briefs, for appellant.
No appearance for appellee.
The state appeals from an order of the district court discharging a defendant in a criminal action.
On March 31, 1951, an information was filed in the district court containing five counts charging the defendant with manslaughter in the first degree, with driving a motor vehicle while under the influence of intoxicating liquor, with reckless driving and with two other misdemeanors. The defendant's motion that he be tried separately on the last two counts was allowed. Later he was arraigned on the first three counts, waived the reading of the information, entered a plea of not guilty and a trial was had. At the close of the state's evidence defendant moved the court that the state elect upon which of the three counts it sought conviction and the state elected to rely upon the first count charging manslaughter in the first degree and dismissed the action as to the second and third counts. The record discloses that the defendant then moved that he be discharged for the reason the evidence produced did not prove the charge, which motion the trial court sustained. The word 'demur' or any synonymous word was not used, but a journal entry later filed stated that the defendant 'demurred' to the state's evidence and moved for his discharge for the reason the state's evidence did not prove and was not sufficient to constitute the crime charged in count 1 of the information or any inferior crime, and that the court sustained the demurrer and the motion and discharged the defendant, and that the state excepted to the rulings.
Directing attention to State v. Keenan, 7 Kan.App. 813, 55 P. 102, the state contends that a demurrer is unknown to the criminal practice and the trial court erred in considering it. In the above case the defendant urged that the trial court erred in not sustaining his demurrer to the state's evidence and the court rather abruptly held there was no error as a demurrer was not a proper practice and there was no authority for it in the criminal code. While the journal entry in the instant case does mention a demurrer, it also mentions the motion to discharge. Both were sustained, and error will not be predicated on the fact the demurrer may have been ruled on.
We take up whether the trial court erred in discharging the defendant. If the evidence tended to disclose that the offense charged was committed and that defendant committed it, the question was for the jury to decide even though the evidence was weak. See The State v. Truskett, 85 Kan. 804, Syl. p 3, 118 P. 1047, and corresponding part of opinion.
In substance, the manslaughter count charged that on October 29, 1950, the defendant wilfully, wantonly, feloniously, without design to effect death, and with culpable negligence, drove a pickup truck on a designated highway on the left-hand side of the highway and ran against and struck an automobile occupied by one Christina Zerr, whereby she was then struck with great violence and received divers mortal wounds, which were caused by the act, procurement and negligence of the defendant while he was 'engaged in the perpetration of a misdemeanor not amounting to a felony, contrary to the form of the statutes Section 21-407, G.S.' in such case made and provided. If there was any motion to quash the information, or any contention otherwise that it did not state an offense the record as abstracted, including the journal entry, does not disclose it.
The question presented by the motion to discharge was whether the state's evidence proved or tended to prove the acts charged in the information. In this connection we note that appellee has not seen fit to file any counter-abstract or brief to advise us of the reasons asserted by him to procure the trial court's ruling in his favor. In the state's brief reference is made to remarks apparently made by the trial court when hearing argument on the motion to discharge but none of which are set forth in the record as abstracted. Under the circumstances, we shall ignore these remarks and confine our discussion to the record as abstracted.
Insofar as is necessary here, it is noted that by G.S.1949, 21-407, it is provided that 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 of any misdemeanor not amounting to a felony, in cases where such killing would be murder at the common law, shall be deemed manslaughter in the first degree. Was the evidence introduced by the state sufficient to support the information charging the above crime? It is unnecessary that we detail at length the evidence of individual witnesses, or recite their testimony. An examination of the record as abstracted discloses that on the day in question one Heier was driving his motor vehicle north on a designated road being followed by the defendant who was driving a pickup truck; that he passed Anton Zerr who was driving a motor vehicle south; that he saw defendant had had a wreck and he turned and went back and Mr. and Mrs. Zerr were still in their car which was headed south. A highway patrolman testified to a conversation with the defendant in which the defendant stated he was traveling north on the highway at a speed between 45 and 50 miles per hour, that he was racing out to the Goetz farm with Heier, that due to the dust he could not see where he was going, that he was on the wrong side of the road, and that the defendant said he didn't remember just exactly what happened or who or what he had hit. He also testified that he visited the place of the collision and that oil spots and broken glass were on the west side of the road. There was other evidence as to the defendant's vehicle being on the west or left-hand side of the highway and striking the one driven by Zerr. This evidence was sufficient to prove a violation of G.S.1949, 8-537, regulating driving upon the right side of the highway, and of G.S.1949, 8-531, pertaining to reckless driving, the violation of the latter being denounced as punishable as provided in the section. There was also some evidence that defendant was operating a motor vehicle while under the influence of intoxicating liquor, an act denounced by G.S.1949, 8-530, and punishable as therein provided. We note also that under G.S.1949, 8-503, that it is unlawful, and unless otherwise declared in the act with respect to...
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