State v. Gregory, 47797

• Decision Date: 08 November 1975
• Docket Number: No. 47797,47797
• Citation: 218 Kan. 180,542 P.2d 1051
• Parties: STATE of Kansas, Appellee, v. William GREGORY, Appellant.
• Court: Kansas Supreme Court

Page 1051

542 P.2d 1051

218 Kan. 180

STATE of Kansas, Appellee, v. William GREGORY, Appellant.

No. 47797.

Supreme Court of Kansas.

Nov. 8, 1975.

Syllabus by the Court

1. Murder and manslaughter are different degrees of the same generic crime, namely homicide.

2. For the purposes of K.S.A. 21-3107(2)(a), manslaughter is a 'lesser degree of the same crime' as murder. In a murder prosecution an instruction on manslaughter is not only proper but required if justified by the evidence.

3. Involuntary manslaughter under K.S.A. 21-3404 requires an unintentional 'killing.' A defendant may be convicted of involuntary manslaughter for an intentional shooting if it is found that the killing of the victim was unintentional.

4. Deliberately shooting a person with intent to injure, unless justified, is at least a felonious aggravated battery under K.S.A. 21-3414. As such, it cannot be an 'unlawful act not amounting to a felony' under the involuntary manslaughter statute (K.S.A. 21-3404) even if the shooting occurs in a city where the discharge of firearms violates a city ordinance.

5. The use of excessive force may be found to be an 'unlawful manner' of committing the 'lawful act' of self-defense, and thereby supply an element of involuntary manslaughter.

6. Where a character trait is relevant, specific instances of conduct (other than evidence of conviction of crime) which tend to prove the trait to be bad is inadmissible.

7. Where evidence of specific instances of the defendant's prior conduct is erroneously introduced for the sole purpose of rebutting evidence of defendant's good character, a limiting instruction under K.S.A. 60-455 will not cure the error.

8. In a prosecution for second degree murder where the defendant was convicted of involuntary manslaughter it is held: (1) it was proper to instruct on involuntary manslauther; (2) the instruction given on that offense was erroneous; and (3) the admission of rebuttal character evidence consisting of specific instances of conduct constituted prejudicial error.

Morris D. Hildreth of Becker, Hildreth, Eastman & Gossard, Coffeyville, argued the cause and was on the brief for appellant.

David L. Thompson, County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., Richard A. Medley, former County Atty., and Linda Sue Trigg, were with him on the brief for appellee.

FOTH, Commissioner:

On Christmas Eve, 1973, William Gregory shot Peter Troy Fullard in the stomach outside the LKC Tavern in Coffeyville. When Fullard died of the wound some thirty days later Gregory was charged with second degree murder. He was convicted by a jury of involuntary manslaughter, and he appeals. His claims of error go to the court's instructions to the jury and to the admission of certain rebuttal testimony.

The LKC Tavern was operated by the defendant's half brother, Kenneth Cargyle. Fullard, the deceased, spent the afternoon in the tavern fortifying himself for the holiday. Trouble developed between him and Cargyle, involving an alleged display of a knife by Fullard, and culminating in his ejection by Cargyle at the point of a sawed-off shotgun. One source of the quarrel was Fullard's claim that he was shortchanged on a ten dollar bill. Gregory, who had been a bystander up to this point, took Fullard's change outside and gave it to Fullard's son. Soon afterwards Fullard called to Gregory to go outside again. Those inside the tavern soon heard a shot and when they went to the door found Gregory on the steps pistol in hand. Fullard was on the ground some ten to twenty feet away.

Gregory's story then and at trial was one of self-defense. According to him, Fullard came at him with an open knife, threatening to kill him. He had, he said, a mighty fear of knives as a result of being stabbed in an affray in Texas some years earlier; all he could see was 'that blade shining.' He retreated to the tavern door, found he couldn't open it, pulled his pistol and shot once, 'trying to stop him.' There were no other witnesses to the shooting, although the occupants of the tavern came pouring out promptly after the shot. Fullard's pocket knife, some 4 to 4 1/4 inches long, was found on the ground ten to fifteen feet from the steps where Gregory had been standing. It was closed.

At trial Gregory objected to an instruction on involuntary manslaughter because he claimed the evidence would not support it. Here he renews the point, but broadens his objection to contend also that involuntary manslaughter is not a lesser offense included in second degree murder. In addition, he now claims the instruction given was inadequate and erroneous.

His argument that manslaughter is not a lesser offense included in murder is based on our statement in State v. Carpenter, 215 Kan. 573, 527 P.2d 1333, Syl. 3:

'A lesser offense is to be considered a lesser included offense when all elements necessary to prove the lesser offense must be prevent and be required to establish the elements of the greater offense.'

He points out that involuntary manslaughter as defined in K.S.A. 21-3404 contains elements which are not necessary to prove a charge of second degree murder.

Granting that this much of his argument is correct, it does not lead to the conclusion he asserts. Whether a defendant may be convicted of an included crime is governed by K.S.A. 21-3107(2):

'(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following: (a) A lesser degree of the same crime; (b) An attempt to commit the crime charged; (c) An attempt to commit a lesser degree of the crime charged; or (d) A crime necessarily proved if the crime charged were proved.'

The Carpenter definition relied on by defendant was obviously tailored to clause (d) of the statute, dealing with a lesser crime 'necessarily proved if the crime charged were proved.' The clause we deem pertinent here is (a), covering a 'lesser degree of the same crime.'

While it may at first blush appear that manslaughter is a different crime from murder, rather than a lesser degree of the same crime, we think on closer examination this is not so. The generic crime we are dealing with is 'homicide.' Under our former crimes act this court was required on occasion to define the terms 'murder' and 'manslaughter,' since the statutes did not do so. In State v. Ireland, 72 Kan. 265, 83 P. 1036, it was recognized that the source to be looked to for such definitions was the common law. The court was guided in its search by what it referred to as 'the celebrated case' of Commonwealth v. Webster., 59 Mass. 295, 52 Am.Dec. 711. Chief Justice Shaw of the Massachusetts Supreme Judicial Court there prefaced an exhaustive discussion of the common law rules of murder and manslaughter by saying:

'. . . Homicide, of which murder is the highest and most criminal species, is of various degrees, according to circumstances. The term, in its largest sense, is generic, embracing every mode by which the life of one man is taken by the act of another.' (P. 303.)

The search for definition by this court was continued in State v. Jensen, 197 Kan. 427, 417 P.2d 273. There, after an extensive review of the authorities, the court observed:

'As indicated, murder at the common law and manslaughter differ not in kind or nature of the offense but only in the degree.' (P. 435, 417 P.2d p. 281.)

This basic principle is also recognized by the text writers:

'While, in one sense, murder and manslaughter are separate crimes, yet, in a broader sense, they involve but one crime and are only degrees of felonious homicide.' (Warren on Homicide, § 83, pp. 415-16.)

See also, 40 Am.Jur.2d, Homicide, § 42; 40 C.J.S. Homicide § 39.

We hold that manslaughter is a lesser degree of homicide than murder, and for the purposes of K.S.A. 21-3107(2)(a) is a 'lesser degree of the same crime.' Therefore, in a murder prosecution, an instruction on manslaughter is not only proper but required if justified by the evidence.

Whether a manslaughter instruction is justified by the evidence is an entirely different question. We have many times held that an instruction on an included offense is not proper if from the evidence the jury could not reasonably convict of the lesser offense. (E. g., State v. McDermott, 202 Kan. 399, 449 P.2d 545; State v. Diggs, 194 Kan. 812, 402 P.2d 300.) We must therefore examine the elements of involuntary manslaughter as set out in K.S.A. 21-3404:

'Involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner. As used in this section, an 'unlawful act' is any act which is prohibited by a statute of the United States or the state of Kansas or an ordinance of any city within the state which statute or ordinance is enacted for the protection of human life or safety.'

Paraphrasing the statute, it requires (1) an unintentional killing without malice; and (2) that it occur while the defendant was either (a) committing some misdemeanor or (b) performing some lawful (i. e., not criminal) act in a manner which, in turn, was either (i) unlawful or (ii) wanton.

Defendant's primary argument on the evidence goes to element (1) requiring that the killing be done unintentionally. He relies on a stipulation in the record that 'No evidence was introduced tending to show the fact that the shooting was done unintentionally in the commission of an unlawful act not amounting to a felony.' (Emphasis added.) We have held, however, that whether the shooting is intentional or not is immaterial; what controls under the statute is whether the killing is intentional. State v. Childers, 217 Kan. 410, 416, 536 P.2d 1349; State v. Weyer, 210 Kan. 721, 504 P.2d 178. Here there is no question but that Gregory intentionally shot Fullard, but the...