State v. Noble, 39070
| Decision Date | 12 December 1953 |
| Docket Number | No. 39070,39070 |
| Parties | STATE v. NOBLE. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. The record examined in a prosecution for murder in the first degree, and held, the trial court did not err in not giving an instruction as to manslaughter in the second degree as defined in G.S.1949, 21-412.
2. The record further examined, and held, there was no prejudicial error concerning the oaths taken by the bailiff.
C. L. Hoover, Robert A. Schermerhorn, and A. B. Fletcher, Jr., Junction City, were on the brief for appellant.
Lee Hornbaker, Junction City, argued the cause, and Harold Fatzer, Atty. Gen., and William F. Stahl, Junction City, were with him on the brief for appellee.
Lee Noble was tried on an information charging him with murder in the first degree. He was convicted of manslaughter in the first degree. His motion for a new trial was denied and he was duly sentenced, and in due time perfected his appeal to this court. He specifies error in that the trial court failed to instruct on manslaughter in the second degree and in that the trial court failed to require the bailiff to take and subscribe an oath at the beginning of the trial and an oath after the jury was charged and before the bailiff took charge of the jury as required by G.S.1949, 20-312 and 62-1448.
We need make only a short review of the evidence and what transpired at the trial in order to discuss the first contention of error.
The evidence discloses that Wieburg, the deceased, and one Stonerock at about 12:30 A.M. on August 17, 1952, went into a tavern owned and operated by defendant Noble. They bought two beers from a waitress Green and drank them in a booth and then went to the counter and ordered six beers to take with them for which Stonerock paid $2.10. Wieburg asked for a receipt from Green who told him all he could have was an oral receipt. Defendant Noble came in, walked behind the counter and asked what was going on and Green informed him. Noble told Wieburg to take the beer and get out. About that time Wieburg said he was a special beer investigator, reached in his billfold and threw a red card on the counter and then picked it up and put it back in his billfold and back in his pocket. During the same time Noble picked up a revolver and told Wieburg and Stonerock to pick up the beer and get out. Noble told Green to pay the money back, she put the money on the counter and put the beer back. Stonerock picked up the money. As Wieburg walked down the counter he said nothing except he wanted the beer. Noble walked down the counter and picked up a club from underneath the cash register and as Wieburg reached the end of the counter Noble struck him over the head with the club felling him to the floor. Noble testifying in his own behalf stated that when Wieburg pulled out the red card all he could see was that it was a red card; that Wieburg said he was from the attorney general's office and that he was a special beer investigator but that when Wieburg threw the card down and picked it up witness realized he was not an officer; that he told Wieburg to leave, got out his revolver, and Stonerock said to Wieburg to come and not to start any trouble and as they walked down the counter Wieburg wanted the beer; that witness could not see Wieburg's right hand and it looked like it was in his pocket and that as Wieburg started around the counter witness hit Wieburg with the 'stick' and that when he struck Wieburg he thought Wieburg was going to jump on him. There is no contention that Wieburg did not die as the result of the blow on his head.
After the evidence had been submitted the defendant requested three instructions all pertaining to self-defense and there is no complaint that they were not given in substance. The trial court instructed the jury fully on murder in the first degree, justifiable and excusable homicide, self-defense, murder in the second degree, manslaughter in the first degree as defined by G.S.1949, 21-407, manslaughter in the third degree as defined by G.S.1949, 21-413, and manslaughter in the fourth degree as defined by G.S.1949, 21-419. No objection was made to the instructions as given, nor was there any request for other or further instructions of any kind.
The premise for appellant's argument that the trial court erred in not giving an instruction on manslaughter in the second degree is that our statute, G.S.1949, 62-1447, requires the trial court in a criminal action to charge the jury respecting all matters necessary for their information in giving their verdict and that it is imperative that in prosecutions for homicide that the jury be charged not only as to the offense charged, here murder in the first degree, but as to all lesser offenses of which the accused might be found guilty under the information and the evidence adduced, and that the rule obtains even though the trial court may deem the evidence supporting the lesser offense to be inconclusive and notwithstanding a request for such instructions had not been made, and State v. Fouts, 169 Kan. 686, 221 P.2d 841, is cited in support. It may be said that that case and others cited therein, as well as others mentioned, support the premise and we shall not discuss it further. As applied to the instant case the question is whether there was any evidence adduced that compelled an instruction on G.S.1949, 21-412, which reads:
'Every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or do any other unlawful act, after such attempt shall have failed, shall be deemed guilty of manslaughter in the second degree.'
The appellant's contention is that Wieburg was committing an unlawful act; that under our statutes a bureau of investigation under the jurisdiction of the attorney general was established, the members of which possess all powers and duties given to sheriffs, G.S.1949, 75-711 and 75-712, and that any person who shall, without authority, exercise or attempt to exercise the functions of and hold himself out to any as a deputy sheriff, marshal, policeman, constable or peace officer, shall be deemed guilty of a misdemeanor, G.S.1949, 21-1617, and that Wieburg, being engaged in the commission of an unlawful act, it was necessary that an instruction be given on manslaughter in the second degree.
Perhaps a sufficient answer can be found in this. The only power conferred on members of the bureau of investigation is that possessed by sheriffs. Under State v. Rose, 96 Kan. 347, 150 P. 601, it was held that a person charged with having attempted to exercise the functions of a sheriff without authority cannot be prosecuted under ...
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State v. Hoy
...In many other cases this court has held every theory of guilt on a lesser degree was excluded under the facts of the case. (State v. Noble, 175 Kan. 398, 264 P.2d 479; State v. Gray, 189 Kan. 398, 369 P.2d 330; State v. Andrews, 187 Kan. 458, 357 P.2d 739; State v. Germany, 173 Kan. 214, 24......
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State v. Robinson, 40742
...does not tend to establish guilt of any lower degree of crime included therein. State v. Hockett, 172 Kan. 1, 238 P.2d 539; State v. Noble, 175 Kan. 398, 264 P.2d 479; State v. Mitchell, 181 Kan. 193, 310 P.2d In the instant case this rule could be applied as the evidence did not clearly re......
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State v. Mitchell
...it clearly established the guilt of defendant of commission of the offense of robbery in the first degree.' See, also, State v. Noble, 175 Kan. 398, 264 P.2d 479. Defendant cites a number of cases where it was determined instructions should have been given on lesser offenses. In each of the......
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State v. Hinkle
...at the trial excludes the theory of guilt on any lesser degree of the crime. (State v. Hoy, 199 Kan. 340, 430 P.2d 275; State v. Noble, 175 Kan. 398, 264 P.2d 479; and State v. Germany, 173 Kan. 214, 245 P.2d Here the requested instructions on manslaughter were properly refused because ther......