State v. Linville

• Decision Date: 11 June 1938
• Docket Number: 33876.
• Parties: STATE v. LINVILLE.
• Court: Kansas Supreme Court

79 P.2d 869

148 Kan. 142

STATE v. LINVILLE.

No. 33876.

Supreme Court of Kansas

June 11, 1938

Syllabus by the Court.

The words "heat of passion," as used in statute defining manslaughter in the second degree, mean any intense and vehement emotional excitement of the kind prompting to violent and aggressive action, as rage, anger, hatred furious resentment, or terror. Gen.St.1935, 21-411.

Instructions given to jury should be based on evidence in the case.

In a criminal case, a question which is purely one of law is exclusively for the court.

Where evidence failed to support charge of manslaughter in second degree, court erred in instructing jury as to that crime and in submitting that issue to the jury.

1. Instructions given to the jury should be based on the evidence in the case, and held it is reversible error to instruct the jury as to the crime of manslaughter in the second degree, and to submit such issue to the jury, when the evidence in the case wholly fails to establish such crime.

2. The words "heat of passion," as used in G.S.1935 21-411, are construed to mean any intense and vehement emotional excitement of the kind prompting to violent and aggressive action as rage, anger, hatred, furious resentment or terror.

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

Appeal from District Court, Allen County; Wallace H. Anderson Judge.

Paul Linville was convicted of manslaughter in the second degree and he appeals.

Judgment reversed and new trial granted.

HARVEY, J., dissenting.

Frederick G. Apt and A. R. Enfield, both of Iola, for appellant.

Clarence V. Beck, Atty. Gen., C. Glenn Morris, Asst. Atty. Gen., and J. C. Edwards, Co. Atty., of Iola, for the State.

ALLEN Justice.

Paul Linville was convicted of manslaughter in the second degree, and appeals.

It appears that the defendant Linville operated a night club southeast of Iola. On the evening in question one Lanferman arrived at the night club about 10:00 o'clock.

Lanferman had been drinking--the evidence was conflicting as to the degree of his intoxication. The defendant undertook to remove Lanferman from the building by way of the door to the northeast room. The defendant testified:

"*** He started to settle down like he was going to fall on the floor. I went around and said 'Come on Ab, let's get out of here and get some fresh air.' I put my arm around him. He slipped and fell and threw me over his shoulder. He went down on his head on the concrete and I went clear over his head to the concrete on my hands and knees. I tried to get him up. Two fellows helped Lanferman up. Some one had vomited on the steps. When we fell, I got vomit all over me. Had it all over my hands. I went upstairs, washed my hands and cleaned the vomit off. I put iodine on my shin and shoulder. Lanferman came in in about thirty or forty minutes. ***."

As to the events that occurred after the return of Lanferman to the house, defendant testified:

"He was staggering around among the people and the tables, covered with vomit. I asked him to leave, about the third time I took hold of his arm and started to the door, when I got to the door with him, he wheeled around; I had my arm around him just as I had before and as he turned, I reached out with my other arm to the jamb of the door to keep from falling out as I did before and just then he slipped out of my arm and fell out the door and as he fell I fell right after him. I grabbed the door to keep from falling. I did not push him or hit him. He was not in any condition for any one to be in and I felt sorry for him. ***"

Stella Goszdak a witness for the state, testified:

"Q. Now, you say Mr. Linville was mad? A. He was mad when he pushed him out.

"Q. How do you know? A. I could tell it.

"Q. Well, how? The jury can decide from what you say whether you could tell it. Just tell the jury how you knew he was mad? A. Paul said to me that he had just put up enough with Mr. Lanferman.

"Q. And that's the reason why you thought he was mad, is it? A. Well, he was mad.

"Q. And just tell the jury what he did and how he showed that he was mad? A. Mr. Linville didn't like it because Mr. Lanferman came back in the second time; and right there at the bar, I could tell it on him that he didn't like it. ***

"Q. *** Just describe to the jury how Mr. Linville pushed Lanferman out the door. A. He had one arm one hand on his shoulder, and with the other arm, he pushed him out.

"Q. Do you know with what of Mr. Lanferman's body that the other hand came in contact? A. His left hand was on Ab Lanferman's shoulder, and with the other, his right hand he pushed him out."

Carl Huckleberry, a witness for the state, stated that the defendant did not appear to be mad.

Wallace Smith, a witness for the defendant, testified:

"I live in Iola, I am employed as a burner at the Lehigh Portland Cement Co. I was at Linville's on the night of the accident. I saw Lanferman about 11:30 or later. We were going home and started out, then I saw Linville escorting Lanferman to the door. It looked to me as if Linville was trying to get him out of there. They were not quarreling or fussing. I just noticed them going out the door. I did not see Linville push Lanferman. He was just taking him to the door. Linville appeared to be disgusted. The next thing I saw was that they were both out doors and Linville said Lanferman was hurt."

There was a cement sidewalk in front of the door. The door was about twenty-four inches above the sidewalk, with three steps leading up to the door.

Dr Reid testified that when he arrived he found Lanferman unconscious; that he remained in a semiconscious or semicoma condition for a period of ten or twelve days and then died. The doctor stated that upon the first examination he could not tell much about him--whether he was suffering from an injury or the effects of alcohol. An X-ray was taken, "but it...