State v. Knoll

• Decision Date: 11 November 1905
• Docket Number: 14,419
• Parties: THE STATE OF KANSAS v. JOHN KNOLL
• Court: Kansas Supreme Court

83 P. 622

72 Kan. 237

THE STATE OF KANSAS v. JOHN KNOLL

No. 14,419

Supreme Court of Kansas

November 11, 1905

Decided. July, 1905.

Appeal from Ellis district court; JAMES H. REEDER, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

MANSLAUGHTER--Killing in an "Unusual" Manner Not Proved. The evidence in this case is legally insufficient to establish a killing in an unusual manner, within the meaning of section 16 of the crimes act (Gen. Stat. 1901, § 2001), defining manslaughter in the second degree to be "the killing of a human being without a design to effect death, in the heat of passion, but in a cruel and unusual manner, unless it be committed under such circumstances as to constitute excusable or justifiable homicide."

C. C Coleman, attorney-general, and E. A. Rea, county attorney, for The State.

W. E. Saum, and A. D. Gilkeson, for appellant.

BURCH J. GREENE, MASON, SMITH, PORTER, GRAVES, JJ., concurring.

OPINION

BURCH, J.

The defendant was convicted of manslaughter in the second degree under section 16 of the crimes act, which reads as follows:

"The killing of a human being without a design to effect death, in the heat of passion, but in a cruel and unusual manner, unless it be committed under such circumstances as to constitute excusable or justifiable homicide, shall be deemed manslaughter in the second degree." (Gen. Stat. 1901, § 2001.)

In this appeal it is urged that the evidence wholly fails to sustain the verdict and judgment. The facts are few, simple, and, so far as the decisive circumstance is concerned, undisputed. They are outlined in a general way in the opinion of this court rendered upon a former appeal, in the case of The State v. Knoll, 69 Kan. 767, 77 P. 580. To the statement there made it is, however, necessary to add a few particulars.

The deceased was a small man, not very stout, in poor health, and a hunchback. The defendant was a much larger and stronger man. The deceased had a revolver, but made no attempt to use it. The defendant, who was unarmed, defied the deceased to shoot, and then grappled him and bore him to the floor. While upon the deceased he choked him and beat him with his fists until they were bloody. After the encounter the deceased was found to have a bruised and bleeding eye, a bruise on the back of his head, bruises on his breast, an abrasion on his back--which, however, was probably a bed-sore--and the tibia of his left leg was broken.

A daughter of the deceased described the onset as follows: "Then Knoll jumped up and grabbed my papa . . . and rolled him on the floor." The wife of the deceased gave the following testimony:

"They pushed me away, and then Alex and Knoll got together in the dining-room there, in the store. I seen Alex had a revolver, and I said, 'Alex, give me the revolver,' and he says, 'No, I won't,' and Knoll says, 'Shoot me if you can.' I guess that is how it was; and then they grabbed some way, and I run to the door then to see is this help coming. . . . I motioned for them to hurry up, and in this time little Anna says, 'Mamma, mamma, he has got my papa down; he is choking him.' And I run through, and sure enough, there lay the revolver in the corner, and I seen right away that it wasn't discharged. Knoll was on Alex, and I gave Knoll a push away, and Alex says, 'My leg is broke.' 'Now,' he says, 'Sponsor, what have you done? You have broke my leg--look at me.' The blood was running from his face, and his leg was broke."

She explained the breaking of her husband's leg thus:

"Where the scuffle was there is a counter; and it has a scantling underneath the counter, and my idea is that he was against the counter this way [illustrating], and he got that leg in there some way, and he pushed him down--threw him down--and twisted that leg off, and John fell on him."

She further said that she would call it a wrestle at first; that they both staggered; that her husband had been drinking; and that Knoll was "bad drunk." The defendant's own account of the occurrence was as follows:

"Then he went up-stairs and got his gun. I says, 'Alex has gone to get his gun,' and she says, 'No, he won't shoot.' The house was north and south, and he turns around with his face to the south, and held up the revolver and says, 'Now, what are you going to do?' And I says, 'Shoot, shoot.' He didn't say anything more, but he swore like everything. And then--I don't know just how it happened--but we grabbed, and I grabbed his left arm this way, and he had the gun this way with this hand, and we grabbed and fell down, and the gun flew away, and Mrs. Denning grabbed the gun; and he tried to hit me, and I got his hands and held them, and says, 'Now will you quit?' And he says, 'No, not for any ,' and I grabbed his arms so, and crossed them on his breast, and I hit him in the face and in the eye. Then I asked him if he got enough, and he says, 'Yes, I give up'; and Mrs. Denning came and says, 'John, that is enough now. What have you done? You have broke Alex's leg.'"

As stated in the former opinion, "Denning was suffering from chronic alcoholism and fatty degeneration of the heart. In consequence of his injury he was put to bed, and by reason of the inactivity thus enjoined, and his previous diseased condition, self-infection resultant from the inability properly to throw off the natural secretions ensued; from which complication he died on the 23d of March, thirty-two days after his injury. While his physical condition prior to his injury was such as would have eventually resulted in his death, the injury which he received hastened that result." (69 Kan. 769.) These facts show clearly enough a homicide committed in the heat of passion, without a design to effect death, and without excuse or justification. But was the killing done "in a cruel and unusual manner"?

There is, of course, no fixed standard, either of cruelty or of wontedness of manner, by which homicides may be measured, and yet the legislature evidently attached much meaning to the distinction which it indicated by the use of the words quoted. By section 26 of the crimes act (Gen. Stat. 1901, § 2011) the involuntary killing of another in the heat of passion by means neither cruel nor unusual is made manslaughter in the fourth degree. The punishment for manslaughter accomplished in a cruel and unusual manner is confinement and hard labor in the penitentiary for not less than three nor more than five years, while that for manslaughter by means neither cruel nor unusual is confinement and hard labor in the penitentiary not exceeding three years, or by imprisonment in the county jail for not less than six months. Cruelty and an unusual manner are therefore vital and essential elements of manslaughter in the second degree. To be such, however, they cannot be discovered in the common pitilessness and pain attending homicides generally, nor in the departure from ordinary use involved in turning common weapons or common instruments or methods of accomplishment to the killing of human beings. Fatal shootings and stabbings and poundings, mutilations of flesh and fractures of bones are all cruel enough, and they cannot be said to represent the usual demeanor of men; hence something more must have been intended. Special stress and emphasis must be imposed upon the words used in order to accomplish the legislative purpose, and this may be done without departing from their ordinary signification, since they are comparative terms susceptible of variant shades of meaning.

It must be said, therefore, that in order to constitute manslaughter in the second degree there must be some refinement or excess of cruelty sufficiently marked to approach barbarity, and to make it especially shocking; and the unusual character of the...