State v. Hamilton, 46584
| Decision Date | 05 April 1975 |
| Docket Number | No. 46584,46584 |
| Citation | 534 P.2d 226,216 Kan. 559 |
| Parties | The STATE of Kansas, Appellee, v. William H. HAMILTON, III, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Where a specific ground of objection to an instruction is not included in the specification of errors, the same is not subject to review on appeal.
2. A party may not assign as error the giving of an instruction unless he objects thereto before the jury retires for deliberation, stating distinctly the matter to which he objects and the ground of his objection, unless the instruction is clearly erroneous.
3. Where the sanity or insanity of the defendant has become an issue in the trial of a criminal action, an instruction as to the effect of a finding of not guilty by reason of insanity is not clearly erroneous as a matter of law.
4. The court is not required to quote verbatim the language of K.S.A. 22-3428 (Weeks 1974) in instructing the jury as to the effect of a verdict finding the defendant not guilty by reason of insanity, it being the legislative intent that the substance of the statute, only, be given.
5. In a prosecution for murder in the first degree, the element of malice may be inferred from the use of a deadly weapon.
6. The element of premeditation, essential to first-degree murder, is not to be inferred from use of a deadly weapon alone, but if, in addition, other circumstances are shown, as, for instance, lack of provocation, the evidence may be sufficient to support an inference of deliberation and premeditation.
7. The record is examined in an action wherein the defendant was found guilty of murder in the first degree and of aggravated battery, and for reasons assigned in the opinion it is held prejudicial error does not appear.
Arthur H. Snyder, Hutchinson, argued the cause, and Leander P. Hamilton, Hutchinson, was on the brief for the appellant.
Porter K. Brown, County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for the appellee.
The tragic events giving rise to this lawsuit took place on the evening of January 2, 1971, when the defendant, William H. Hamilton, III, and Gary Buhler, his friend and fellow insurance salesman, 'went out on the town', so to speak, in Hutchinson, Kansas. Their evening ended with an innocent third party dead, with Gary Bugler shot through the neck, and with the defendant Hamilton facing charges of first-degree murder and aggravated battery. The jury which heard the case returned a verdict of guilty of murder in the first degree and fixed the punishment at death. It also found the defendant guilty of aggravated battery. The defendant's motion for a new trial was overruled and he was sentenced to be executed. Subsequently the trial court amended the sentence to one of imprisonment for life on the charge of first-degree murder and also imposed a sentence of from five to twenty years for aggravated battery. The defendant, to whom we shall hereafter refer either as Hamilton, or defendant, brings this appeal.
A number of eating or drinking spots appear to have been visited that fatal evening. During their rounds Hamilton and his companion each consumed a quart of wine and an undetermined number of beers. In the process, the defendant, who was armed with a derringer and carried a tear-gas pen, became unruly, displaying his pistol at one of the last places visited and discharging his tear-gas pen. On being asked to leave the establishment the two men moved on to another restaurant where Hamilton again became boisterous and Gary Buhler went outside, got in Hamilton's car, and fell asleep.
Later, at about 11 o'clock, Hamilton was driving his car south on Adams Street in Hutchinson, with Buhler in two, when a car driven by Michael Dean Latimer pulled into the street ahead of him. Hamilton trailed the car for several blocks, blinking his lights and blowing his horn. When Mr. Latimer finally pulled over to the curb and stopped Hamilton stopped also. After stopping, Latimer and his financee, Gail Palstring, got out and walked to the rear of their car, where they met Hamilton as he walked up from his car. Hamilton ordered Miss Palstring to get back in the car, which she proceeded to do, but not before she heard Hamilton tell Mike Latimer that the police were after him, that he was drunk and he wanted to ride in the back seat of Mike's car. Mike refused, stating that the back seat was full. After she got back in the car Gail heard a few mumbles and then a gun shot. Gail got out and found Mike lying face up, his head by the rear wheel, and with blood on his forehead. She attempted to pull him away from the wheel and then got in the car and drove back to the home of the couple they had just left. The manager of a nearby motel called police and officers soon arrived at the scene. They took Mike to the hospital where he died about 3 a. m. from a single shot in the head.
After shooting Mr. Latimer, Hamilton returned to his car and left in a hurry. Gary Buhler, who had been awakened by the shot, remembered seeing somebody fall and seeing Hamilton running back to his car. When Gary asked what had happened, the defendant said he fired above the boy's head to scare him, and not to worry about it. One being pressed further for an explanation, Hamilton refused to answer and offered to take Buhler to his car. Buhler agreed, and as he was leaving the car he asked again for an explanation. At this point Hamilton shot him through the neck. Hamilton was arrested and taken to the police station later that night after he had rid himself of his pistol.
Against this background we turn to the points raised by Hamilton on appeal. They are two in number (1) the trial court erred in instructing the jury (instruction sixteen) as to the legal consequences of a verdict of not guilty by reason of insanity, the effect of such instruction being so prejudicial as to deprive him of a fair trial, and (2) the verdict is unsupported by evidence in that neither premeditation nor malice was shown. We shall consider the points in order.
In drafting instruction sixteen, advising the jury with respect to the effect of a verdict of not guilty by reason of insanity, the trial court obviously was attempting to comply with the provisions of K.S.A. 22-3428 (Weeks 1974), reading as follows:
'(1) When a person is acquitted on the ground that he was insane at the time of the commission of the alleged crime the verdict shall be 'not guilty because of insanity,' and the person so acquitted shall be committed to the state security hospital for safekeeping and treatment.
'(3) In any case where the defense of insanity is relied on the court shall instruct the jury on the substance of this section.' (Emphasis supplied.)
Sections (1) and (2) of this statute were enacted by the 1970 legislature as part of the recent act relating to criminal procedure. (L.1970, ch. 129.) These two sections, for practical purposes, are substantially the same in context as a former statute, K.S.A. 62-1532. Section (3), however, added a new dimension in 1971 when it was adopted by the legislature. (L.1971, ch. 117, § 1.) It was pursuant to the mandate of section (3) that the court instructed on the effect of a not guilty verdict because of insanity and in so doing quoted, verbatim, the language of sections (1) and (2).
While the defendant now complains that instruction sixteen was prejudicial to the extent of depriving him of a fair trial, no objection was made at the trial on that ground and the record, itself, reflects no objection of any kind being lodged against the instruction. However, the state advises in its brief that Hamilton did object to the instruction, but solely on the ground that his plea of insanity was made before the effective date of the 1971 statute. Since this particular objection was not included in the specification of errors, it is not subject to being reviewed on appeal. (See cases, 1 Hatcher's Kansas Digest (Rev.Ed.) Appeal & Error, § 177.)
The only challenge now made to instruction sixteen is simply this: that it prejudiced the defendant's constitutional right to a fair trial and denied him due process. This point was not raised at the trial and the following statutes thus become pertinent: K.S.A. 60-251(b) and 22-3414(3) (Weeks 1974) both provide:
'No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearly erroneous. . . .'
In the recent case of Baugher v. Hartford Fire Ins. Co., 214 Kan. 891, 522 P.2d 401, we said in this connection:
See, also, Flett Construction Co., Inc., v. Williams, 210 Kan. 28, 30, 500 P.2d 54, wherein we said that objection to instructions not presented to the trial court will not be considered by this court for the first time.
Was instruction sixteen clearly erroneous as a matter of law? We believe it was not. This conclusion is not based solely on the mandate of our own statute, for not even a statutory...
To continue reading
Request your trial
-
Government of Virgin Islands v. Fredericks
...Bean v. State, 81 Nev. 25, 398 P.2d 251 (1965), Cert. denied, 384 U.S. 1012, 86 S.Ct. 1932, 16 L.Ed.2d 1030 (1966); State v. Hamilton, 216 Kan. 559, 534 P.2d 226 (1975) (based on state statute); State v. Pike, 516 S.W.2d 505 (Mo.App.1974) (same). See also State v. Hammonds, 290 N.C. 1, 224 ......
-
State v. White
...the use of a deadly weapon, in order to support an inference of premeditation. See Henson, 221 Kan. at 639, 562 P.2d 51 (citing State v. Hamilton, 216 Kan. 559, Syl. p 6, 534 P.2d 226 [1975] ). According to White, none of these other circumstances or factors exist in this The second factor ......
-
Erdman v. State, 1535
...(1985), State v. Amorin, 58 Haw. 623, 574 P.2d 895 (1978)); Kansas (Kan.Stat.Ann. § 22-3428(6) (1987 Supp.), State v. Hamilton, 216 Kan. 559, 534 P.2d 226 (1975), State v. Alexander, 240 Kan. 273, 729 P.2d 1126 (Kan.1986)); Missouri (Mo.Stat.Ann. § 552.030(6) (Vernon 1987), State v. Pike, 5......
-
State v. Foy
...in State v. Buie, 223 Kan. 594, 597, 575 P.2d 555 (1978); State v. Henson, 221 Kan. 635, 562 P.2d 51 (1977); and State v. Hamilton, 216 Kan. 559, 534 P.2d 226 (1975). Here the trial court gave PIK, Criminal instruction § 56.04(b) (Revised) which does not include reference to the use of a de......