State v. Jensen

• Decision Date: 27 July 1966
• Docket Number: No. 44265,44265
• Citation: 417 P.2d 273,197 Kan. 427
• Parties: STATE of Kansas, Appellee, v. Alfred L. JENSEN, Appellant.
• Court: Kansas Supreme Court

Page 273

417 P.2d 273

197 Kan. 427

STATE of Kansas, Appellee, v. Alfred L. JENSEN, Appellant.

No. 44265.

Supreme Court of Kansas.

July 27, 1966.

Syllabus by the Court

1. At the common law, homicides were of two classes only; those done with malice aforethought, either express or implied, and called murder, and those done without malice aforethought and called manslaughter.

2. The purpose of K.S.A. 21-407, entitled by the legislature as manslaughter in the first degree, was to fill a gap in the crimes act by bringing within its provisions all other phases of the crime of murder which were known to the common law and which were not included in those sections defining murder in the first and second degrees.

3. In construing and applying 21-407, providing 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 when such killing would be murder at the common law,' etc., the offense must be one which would have constituted murder at the common law when the statute first appeared in the criminal law of Kansas in 1855. No change of meaning, to apply it to homicide committed on a public highway by operation of an automobile, is permissible, and the prosecution is not for culpable negligence, but for common-law murder.

4. Courts must look to the common law for the definition of the words 'murder' and 'manslaughter' as used in the crimes act. Circumstances such as to constitute the crime of murder at the common law, as that term is used in 21-407, exist where a person of sound memory and discretion, unlawfully kills any reasonable creature in being, and in the peace of the state, with malice aforethought, either express or implied.

5. The term 'malice aforethought' as used in the phrase 'murder at the common law' defined in the foregoing paragraph of the syllabus, is the grand criterion which distinguishes murder from other killing and comprehends that, in a case involving a homicide committed on a public highway by operation of an automobile alleged to be in violation of 21-407, a defendant's conduct surrounding the homicide not only be such as to evince a reckless disregard of consequences, under circumstances involving danger to the life or safety of others, but also that the unlawful act from which death ensued be occasioned by some degree of deliberation, wickedness of disposition, an evil design in general, the dictate of a heart regardless of social duty and fatally bent on mischief, as characterized by an intent to do great bodily harm.

6. The term 'malice' refers to the state of mind and heart of the defendant, which actually existed at the time of the doing of the act from which the death resulted. Its existence in every case must be established by proof either direct or circumstantial; never by presumption. It is called implied malice when it is inferred from the naked fact of homicide, and express malice when it is established by other evidence of external circumstances discovering the inward intention.

7. An automobile is not per se a deadly weapon, and in a prosecution for murder at the common law under 21-407 where the evidence shows the defendant was driving his automobile while under the influence of intoxicating liquor in violation of K.S.A. 8-530, without more being shown, it is not sufficient of itself to support an implication of malice as a matter of law.

8. Where a question is purely one of law, although arising in a criminal case, it is exclusively for the court.

9. The case of State v. Goetz, 171 Kan. 703, 237 P.2d 246, insofar as it is inconsistent with the rule announced in paragraph 5 of the syllabus, is overruled.

10. The record in a criminal prosecution under K.S.A. 21-407 is examined, and it is held: The evidence fails to show the decedent's death was occasioned by some degree of deliberation, wickedness of disposition, an evil design in general, the dictate of a heart regardless of social duty and fatally bent upon mischief on the part of the defendant, to imply malice in law to the act causing the death. It is further held there is nothing in the record to support an inference of express malice, and the district court erred in instructing the jury as to the crime of murder at the common law and in submitting to it that issue. It is further held the defendant's motion for discharge made at the close of the state's evidence should have been sustained.

John C. Fay, Manhattan, argued the cause and was on the briefs, for appellant.

Donn J. Everett, County Atty., Manhattan, argued the cause, and Robert C. Londerholm, Atty. Gen., Topeka, was with him on the briefs, for appellee.

FATZER, Justice.

The defendant, Alfred L. Jensen, appeals from a conviction of manslaughter in the first degree on an information charging that he feloniously killed John B. McMurray by his culpable engligence, without a design to effect death, while engaged in the perpetration of the misdemeanor of driving his automobile on a public highway while under the influence of intoxicating liquor, under circumstances when such killing would be murder at the common law, in violation of K.S.A. 21-407. The principal question is whether the district court erred in overruling the defendant's motion to quash the information and discharge the defendant, made at the close of the state's case.

This story of a young soldier and intoxicating liquor and death on the highway is briefly told. During the course of the day of December 5, 1964, preceding the accident from whence this charge arose, the defendant consumed a quantity of intoxicating liquor in and near the city of Manhattan with various friends, after sleeping only about four hours the night before. Jensen had his last drink at the Centennial Bar in Manhattan and left the tavern shortly before midnight. After a brief stop at the home of a friend to go to the bathroom, he left Manhattan in his automobile, driving west on Highway K-18 toward the Fort Riley Military Reservation approximately ten miles west of Manhattan, where he was stationed. Highway K-18 is a four-lane concrete highway with shoulders adjacent to each outside lane. When Jensen reached the top of Stagg Hill some two or three miles west of Manhattan, he felt 'real tired' and kept dozing off, but did not think he was so tired he could not drive; he would 'half go to sleep' and then come to with a start and wake up, and he did not remember much of anything from Stagg Hill to the point of impace with McMurray's highway patrol car some two miles farther west on the highway.

According to the testimony of an eyewitness, the defendant's driving was erratic from Stagg Hill to the place of the accident; his automobile weaved back and forth across the center line of the two westbound traffic lanes at least three times and the witness testified that when the defendant passed him, he (the defendant) missed his car by only a few inches. The weaving continued to the point of impact. At one point, the defendant's automobile almost crowded a Volkswagen off the highway. However, throughout his trip to the place of the accident, the defendant was driving approximately 35 to 40 miles per hour.

During that same night and early morning, two troopers of the Kansas Highway Patrol, John B. McMurray and Jay Locy, were in separate patrol cars operating a radar speed check on Highway K-18. Both vehicles were parked on the north shoulder of the highway, facing west, with their lights off. Locy's vehicle was the 'radar' car and it was parked two or three hundred feet to the east of McMurray's vehicle which was the 'pick-up' car. The night was very cold and the highway was clear, although it had snowed a day or so prior to the accident.

Immediately prior to the accident, McMurray got out of his car and walked around back to put something in the trunk. About this time, the defendant's car, astride the center line of the westbound traffic lanes, passed Locy's vehicle and then veered in a northerly direction toward McMurray's car, striking the decedent and the rear of his vehicle, pinning him between the defendant's automobile and the patrol car. On December 9, 1964, McMurray died from the injuries received.

As to the state of intoxication of the defendant, the record discloses the following: By his own testimony, which is summarized in the state's brief, the defendant consumed during the day preceding the accident about eight beers and four drinks of hard liquor. Witnesses appearing on his behalf testified that he was not intoxicated at the time he left the Centennial Bar and when he began his fateful trip. The physician who took a blood alcohol test, to which the defendant voluntarily submitted, testified that at a time shortly after the accident, the effects of alcohol on the defendant were 'slight.' It further appears the defendant struck his face on the steering column at the time of the impact and did not know whether he was knocked momentarily unconscious, but he was disoriented and unsteady immediately thereafter. Jensen testified that he did not know what he had run into 'because I never did see any cars parked alongside the road,' and that he got out of his car and did not 'know what was happening around me, I didn't know what I had run into.' These circumstances notwithstanding, witnesses for the state, a patrolman and an eyewitness, testified that in their opinion the behavior of the defendant immediately after the accident was attributed to his intoxication. It should be further noted that, although a blood alcohol test was taken and a laboratory report received by the state, the results thereof were not introduced at the trial by either the prosecution or the defense. Nevertheless, there was sufficient evidence to sustain the jury's finding that, which inhered in its verdict of guilty, the defendant was engaged in the...