State v. Minor
| Decision Date | 14 July 1966 |
| Docket Number | No. 44496,44496 |
| Citation | 197 Kan. 296,416 P.2d 724 |
| Parties | STATE of Kansas, Appellee, v. Melvin MINOR, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In a criminal action the information filed in the district court charged the defendant with the offense of manslaughter in the fourth degree, but he was prosecuted by the state and tried on the assumption that the information charged manslaughter in the first degree. Upon appeal from a judgment of conviction of manslaughter in the first degree it is held: The trial court lacked jurisdiction to try the defendant for the offense of manslaughter in the first degree, and the judgment of conviction is void.
2. Where a search of the record by the Supreme Court on appeal in a criminal case discloses a jurisdictional defect in the trial court, as related in the foregoing syllabus, the Supreme Court will raise the question on its own motion and has a duty to consider it.
3. The conviction of a defendant in a criminal action upon a charge not made in the information is sheer denial of due process of law under the Fourteenth Amendment to the Federal Constitution.
4. In a criminal action the trial court must not only have jurisdiction over the offense charged, but it must also have jurisdiction of the question which its judgment assumes to decide.
5. In a criminal action pending in the district court, the information or indictment is the jurisdictional instrument upon which the accused stands trial.
6. In Kansas all crimes are statutory and the elements necessary to constitute a crime must be gathered wholly from the statute. Where an information fails to allege an essential element of manslaughter in the first degree, it cannot be cured by the court or the parties proceeding to trial as if the information did charge manslaughter in the first degree, and a judgment of conviction for manslaughter in the first degree based upon an information which does not charge such offense is void for lack of jurisdiction of the subject matter.
Elmer C. Jackson, Jr., Kansas City, argued the cause, and Myles C. Stevens, Kansas City, was with him on the brief, for appellant.
James C. Thompson, Asst. County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and Leo J. Moroney, County Atty., were with him on the brief, for appellee.
This is an appeal in a criminal action from a conviction of manslaughter in the first degree.
The only question is whether the accused can be tried and convicted of first degree manslaughter without having been charged in the information with manslaughter in the first degree.
On the afternoon of August 8, 1964, Earl Lee Harris and Larry Harlin were killed by the collision of two automobiles on a bridge on North Tenth Street in Kansas City, Kansas. Melvin Minor was charged as the driver of one of these vehicles with two counts of manslaughter, which the state describes in its brief as manslaughter in the first degree.
On the 4th day of December, 1964, the defendant was bound over on such charges to the district court. His trial commenced on the 13th day of October, 1965, and the defendant pleaded not guilty.
There was evidence tending to show that the defendant was under the influence of intoxicating liquor, driving his vehicle somewhere between 70 and 80 m. p. h. on the wrong side of the road in a 30 m. p. h. speed zone.
At the trial of the case both the state and the defendant proceeded as if Count I of the information charged the defendant with manslaughter in the first degree. Larry Harlin, deceased, was riding in the defendant's vehicle when the collision occurred, and the defense at the trial was based on the ground that Larry Harlin was driving the defendant's automobile when the collision occurred. After all the evidence was presented, the trial court instructed the jury concerning manslaughter in the first degree. Despite conflicting evidence, the jury believed the testimony of the state's witnesses and found the defendant guilty of manslaughter in the first degree.
Appeal has been duly perfected raising alleged trial errors. In view of our decision these trial errors become immaterial.
Count I of the information reads as follows:
'Robert J. Foster, as County Attorney in and for the County of Wyandotte, in the State of Kansas, prosecuting for and on behalf of said State, within the County of Wyandotte, and in the name, and by the authority, and on behalf, of the said State of Kansas, now, here, in and to the District Court of said County of Wyandotte, and State of Kansas, information gives that at said County of Wyandotte, State of Kansas, within the jurisdiction of this Court, on or about the 8th day of August, 1964, one Melvin Minor, did unlawfully, feloniously, wilfully, knowingly, negligently, and with culpable negligence run, drive, operate and manage a certain motor vehicle, to-wit: a 1964 Dodge 2 door hard top automobile, within the city of Kansas City, Wyandotte County, Kansas, at a rate of speed greater than is reasonable and proper, having no regard for the traffic and use of the road and condition of the road, driving in the wrong lane in an intoxicated condition, and at a rate of speed such as to endanger the life and limb of any person then and there being, and he, the said Melvin Minor, then and there unlawfully, wilfully, knowingly, negligently, and without design to effect death run against and into a 1963 Ford Tudor, operated by Earl Harrie (Harris), whereby Earl Harrie was thrown with great force and violence upon the ground and divers mortal wounds, bruises and contusions then and there inflicted upon the head and body of him, the said Earl Harrie, of which mortal wounds, bruises and contusions, the said Earl Harrie then and there died, and the death of him, the said Earl Harrie, as aforesaid, then and there being caused by the act, procurement and culpable negligence of him, the said Melvin Minor, contrary to the statutes in such cases made and provided.'
Count II of the information was similarly worded, except that it attempted to charge the defendant with the death of Larry Harlin, a passenger in the defendant's vehicle, but it failed to allege that Larry Harlin died. The trial judge upon discovering this omission dismissed the second count on his own motion prior to trial.
Manslaughter in the first degree is defined in K.S.A. 21-407 as follows:
'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 or attempt to perpctrate any crime or misdemeanor, not amounting to a felony, in cases where such killing would be murder at the common law, shall be deemed manslaughter in the first degree.'
A brief study of Count I of the information will disclose that it does not follow the language of the statute, 21-407, supra, defining manslaughter in the first degree. Nowhere does the information allege that the killing described would be murder at the common law. At best, the information charges manslaughter in the fourth degree as defined in K.S.A. 21-420, but it cannot be commended as a model of the draftsman's art.
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