State v. Lange

• Decision Date: 18 September 1967
• Docket Number: No. 10311,10311
• Citation: 82 S.D. 666,152 N.W.2d 635
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Frank R. LANGE, also known as Francis Roscoe Lange, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 635

152 N.W.2d 635

82 S.D. 666

STATE of South Dakota, Plaintiff and Respondent, v. Frank R. LANGE, also known as Francis Roscoe Lange Defendant and Appellant.

No. 10311.

Supreme Court of South Dakota.

Sept. 18, 1967.

Maule, Maule, Day & Maulis, William F. Day, Jr., Winner, for defendant and appellant.

Frank Farrar, Atty. Gen., Walter Andre, Asst. Atty. Gen., Pierre, John J. Simpson, Winner, for plaintiff and respondent.

HOMEYER, Presiding Judge.

Defendant, Frank R. Lange, was charged with and found guilty of manslaughter in the first degree and appeals. He asserts (1) error in refusing to quash the information for failure to properly state the offense (2) insufficiency of the evidence to support the verdict (3) misconduct of the state's attorney, and (4) prejudicial error in receipt of evidence and instructions.

The information charged the defendant on August 3, 1965 'did, feloniously and willfully make an assault upon a human being, William H. Kewley, without a design to effect death and by such action inflicted injury upon said William H. Kewley which resulted in the death of said William H. Kewley, and did then and there commit the crime of Manslaughter In The First Degree * * *'.

Homicide is manslaughter in the first degree 'When perpetrated without a design to effect death and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide'. SDC 13.2013(2). It is clear from the record and briefs that it was intended to charge the defendant under the quoted subsection of the manslaughter statute. No weapon was employed; hence the criminal act alleged must have been 'perpetrated without a design to effect death and in a heat of passion, but in a cruel and unusual manner'.

This court in State v. Belt, 79 S.D. 324, 111 N.W.2d 588, reviewed our statutes and decisions on the sufficiency of criminal pleading and it is manifest that considerable liberality is permitted. Technicalities have been abolished and it is only necessary to plead the offense in its usually designated name in plain, ordinary language. An information is sufficient if it enables a person of common understanding to know what is intended from the language contained therein. However, it 'must apprise the defendant with reasonable certainty of the accusation against him so that he may prepare his defense and plead the judgment as a bar to a subsequent prosecution for the same offense.' State v. Sinnott, 72 S.D. 100, 30 N.W.2d 455. Despite liberality of interpretation pleading the essentials of the offense is not obviated and 'where the manner, means or other facts are necessary ingredients of the offense, it must be pleaded * * *'. State v. Belt, supra.

An information is sufficient if it employs the language of the statute or its equivalent, State v. Bayliss, 59 S.D. 585, 241 N.W. 608, State v. Thomas, 78 S.D. 568, 105 N.W.2d 549, State v. Judge, 81 S.D. 128, 131 N.W.2d 573, but it must at least in substance contain the necessary elements of the offense. State v. Paul, 41 S.D. 40, 169 N.W. 739; State v. Taylor, 44 S.D. 332, 183 N.W. 998.

In State v. Edmunds, 20 S.D. 135, 104 N.W. 1115; 21 S.D. 5, 108 N.W. 556, the defendant was convicted of manslaughter in the first degree under a charge that he struck and beat the deceased with a wooden club inflicting wounds causing death. Contention was made that it did not charge murder or manslaughter in the first degree and at most charged manslaughter in the second degree. A divided court held the information sufficient in that it charged the accused with willfully killing another human being with a wooden club, which if it produced death as used was necessarily a dangerous weapon, without excuse or justification and the acts which caused the death were intentional and not accidental or by mistake. The court said:

'So, when one human being kills another in a cruel or unusual manner under circumstances which neither excuse nor justify the killing, or where one human being kills another by means of a dangerous weapon under circumstances which neither excuse nor justify the killing, the crime is at least manslaughter in the first degree, and may be murder if the killing is done with the malice essential to that offense.'

Where no dangerous weapon was employed as here, a vital and essential ingredient of the crime of manslaughter in the first degree is that it be perpetrated in a cruel and unusual manner under SDC 13.2013(2). See State v. Knoll, 72 Kan. 237, 83 P. 622. Such are the words of the statute. Neither these words nor any equivalent were used in the information. At most the information may have charged manslaughter in the second degree, see SDC 13.2016, but the defendant was not convicted of that offense and thus the conviction must be reversed and a new trial granted.

Although the foregoing disposes of the appeal, we are of the opinion that the judgment should also be reversed because the evidence is not sufficient to sustain a conviction of manslaughter in the first degree under SDC 13.2013(2).

The decedent was a small man, grayish, 62 years old and weighed about 130 pounds. He lived on a farm or ranch near Winner and drove to town about midmorning on August 2, 1965. He spent most of his time in bars until the altercation which resulted in his death and apparently had consumed a considerable amount of intoxicating beverages.

His son, James, and two sons-in-law, Harold McElfresh and Joe Conway, quit work in late afternoon or early evening and went on a beer drinking spree which brought them to Winner about 10:30 p.m. They made the rounds of the bars drinking considerable at each and met up with the decedent at one of them. Joe Conway left for home early, but the decedent, his son, and McElfresh remained in Winner and continued to patronize its bars.

The defendant arrived at the Peacock Bar about 11:00 p.m., where he met a young salesman, James Patrick Devitt. Both Devitt and the defendant had some drinks. McElfresh and James Kewley came into the Peacock about midnight and the decedent about a half hour later. There is no evidence of any trouble between these men in the Peacock. The record is not too clear as to who left first or the sequence of departure, but it appears some trouble developed between the decedent and Devitt outside the Peacock about 1:00 a.m. which was closing time. They wrestled in the street and gutter and were separated by James Kewley. Foul language was exchanged and the noise created awakened neighboring tenants. In the course of events the decedent stripped himself to the waist in preparation for physical encounter and was grabbed by the defendant who either dropped or hurled him onto the sidewalk causing a fatal injury to his back from which he died two days later. The defendant also threw son James onto the sidewalk. The evidence is clear that the decedent sustained his injury from a single momentary assault.

The age of the defendant does not appear in the record, but he apparently is a much younger man, and a witness for the state who was aroused from his sleep by the noise and viewed the disturbance from a second floor apartment about 250 feet distant, described him as having a build like Charles Atlas. The decedent, though older, and considerably lighter in weight, lead an active life and was able to clamp a hold on Devitt causing him to lose consciousness shortly before he sustained the fatal injury. The testimony also shows that less than two months before he sheared eighty 100--pound sheep in two days aided by a pulley device to relieve strain on his back.

The phrase 'in a cruel and unusual manner' appears in the manslaughter statutes of a number of states and courts have attempted to define it and apply it to variant factual situations. In State v. Knoll, 72 Kan. 237, 83 P. 622, a burly defendant beat a sickly and slightly built hunchback until the defendant's fists were bloody. The victim suffered a broken leg, numerous lacerations and other injuries which led to complications and eventually death. Both participants had been drinking. The evidence was held insufficient to sustain a conviction and the court said '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 manner displayed must stand out as sufficiently peculiar and unique to create surprise and astonishment and to be capable of discrimination as rare and strange.' Though the savageness of the assault, the deceased's pain and injuries coupled with the disparity between defendant's physical appearance and decedent's presented a spectacle of brutality, still that court said the manner of death was very ordinary in a fight of this type and lacked the...