State v. Phelps

• Decision Date: 27 January 1940
• Docket Number: 34518.
• Citation: 97 P.2d 1105,151 Kan. 199
• Parties: STATE v. PHELPS.
• Court: Kansas Supreme Court

97 P.2d 1105

151 Kan. 199

STATE v. PHELPS.

No. 34518.

Supreme Court of Kansas

January 27, 1940

Syllabus by the Court.

Where first count of fourth degree manslaughter information was based on death of wife and second count on death of husband jury returned verdict of guilty on "2 counts," verdict was returned to jury and foreman changed figure "2" to "first and second," jury was inquired of regarding whether that was its verdict and there was not a negative response, the changing of the verdict did not constitute prejudicial error.

In homicide prosecution, it is trial court's duty to instruct jury on the law not only regarding offense charged but regarding offenses inferior thereto, of which defendant might be found guilty under the information and on the evidence adduced.

In manslaughter prosecution for causing death of two persons in highway collision resulting from defendant's allegedly unlawful operation of automobile in attempting to pass another automobile and colliding head on with automobile approaching from opposite direction, trial court's failure to instruct jury concerning offense of negligent homicide was prejudicial error, even though court was not specifically requested to give such instruction. Gen.St.Supp.1937, 8-529, 8-531; Gen.St.1935, 62-1447.

1. The changing, under facts recited in the opinion herein, of a verdict of guilty, so that it reads "first and second counts" instead of "2 counts" does not constitute prejudicial error.

2. In prosecutions for homicide it is the duty of the trial court to instruct the jury on the law not only as to the offense charged but as to offenses inferior thereto, of which the defendant might be found guilty under the information and upon the evidence adduced.

3. The record is examined in a criminal prosecution wherein the defendant was charged with causing the death of two persons in a highway collision resulting from his unlawful operation of an automobile, and it is held that under the facts stated in the opinion the failure of the trial court to instruct the jury concerning the offense of negligent homicide, as defined in section 8-529, 1937 Supp., was prejudicial error, even though request for such instruction was not made.

Appeal from District Court, Douglas County; Hugh Means, Judge.

Raymond Phelps was convicted of manslaughter in the fourth degree and he appeals.

Judgment reversed, with directions to grant a new trial.

Edw. T Riling and John J. Riling, both of Lawrence, and John W McElroy, of Topeka, for appellant.

Jay S. Parker, Atty. Gen., A. B. Mitchell, Asst. Atty. Gen., and Milton P. Beach, Co. Atty., of Lawrence, for appellee.

HOCH Justice.

The defendant was convicted, on two counts, of manslaughter in the fourth degree and sentenced on both counts, the sentences to run concurrently. He appeals to this court, assigning errors which will be hereinafter discussed.

Raymond Phelps, the defendant, a resident of Wisconsin, had formerly lived in Topeka, Kansas, and had been visiting for several days with his father in Topeka. On the evening of March 7, 1939, he was driving his father's automobile and had with him five passengers. A young woman was in the front seat with him and two couples were in the back seat. They were on a pleasure ride, having left Topeka sometime after eight o'clock in the evening. As they were proceeding eastward about two miles east of Lawrence, Kansas, Phelps came up behind another car which was traveling eastward, attempted to pass it, and in doing so his car collided head on with a car coming from the east. Mr. and Mrs. Bernard Brown, the two occupants of the westbound car, were killed. There is no dispute that the Phelps car was on the wrong side of the road when the collision occurred.

The information contained two counts, the first one based on the death of Mrs. Brown and the second on the death of Mr. Brown. In each count it was charged in substance, that the defendant was driving unlawfully and with culpable negligence and in such a reckless manner as to indicate a wanton disregard for the safety of others and at such a rate of speed as to endanger the life of others and by so operating the car caused the death of Mr. and Mrs. Brown.

For the purposes of this review we need make only brief reference to the testimony. The accident took place about eleven o'clock p. m. The pavement was dry. The Phelps car was going down a slight grade to the east and was approaching a car which was traveling at about 45 or 50 miles an hour, according to the testimony of Hamilton, the driver. As the Phelps car turned out to the left to pass the Hamilton car the Brown car suddenly appeared and the collision occurred. Phelps explained his failure to see the approaching car by the fact that several hundred feet to the east there was a dip in the pavement and that the Brown car came suddenly out of the dip. He also testified that just after seeing the lights of the approaching car it appeared that the other car was wavering. He applied his brakes, and the evidence disclosed that there were skid marks made by his car for a distance of approximately 80 or 90 feet which continued almost, if not entirely, to the point where the collision occurred. There was no testimony that skid marks were made by the Brown car. Hamilton testified that he had observed a car coming from the east when it was four or five hundred feet away, that he did not know how fast it was traveling, that nothing about its operation attracted his attention, that it was traveling on the right or north side of the pavement and did not go over on his side, that he did not see the Phelps car coming from the west until almost simultaneously with the accident which took place about 25 feet back of his car, that he heard the screeching of the brakes immediately before the accident, that he heard the screech of the brakes about the same time that the lights illuminated the interior of his car. A passenger in the Hamilton car gave substantially the same testimony. One of the passengers in the Phelps car who was riding in the back seat, said that when they reached the top of the grade just before proceeding down the slope to the east she saw the headlights of a car coming toward them and then she noticed the lights disappeared, but she did not realize that Phelps had pulled over to the left side of the road in order to pass the car in front of him, that she did not know just how far away the lights from the approaching car were, but that "there was some little time intervened" and that "There were a few seconds" between the time she first saw the lights of the approaching car and when the crash took place. The young woman who was riding in the front seat with Phelps testified that just before the accident she had been leaning over operating the radio in the car, that while doing this she looked up and saw a car coming from the east that she had not seen any car coming over the hill beyond the dip and when she first saw the lights of the approaching car they were about 200 feet from it, that "It might have been more or it might have been less," that after she noticed the lights Phelps put on the brakes, the car coming from the east swayed a little but continued coming in their direction.

One assignment of error is that the court erred in not instructing the jury that since the death of Mr. and Mrs. Brown occurred in the same accident, the defendant could not be found guilty of two offenses and that the court erred in sentencing him upon two counts. It appears, however, that no objection was made at the time to the instructions under which the defendant could be found guilty on two counts; and that although the defendant was found guilty on both counts sentences were imposed to run concurrently. In view of these facts and of the conclusions reached herein on other matters, we do not now pass upon this question.

Another assignment of error is that the verdict was improperly changed after it was returned. The facts on this matter are shown by the following comment by the court prior to overruling the motion for a new trial: "The jury came into the court room. The court asked the jury whether it had arrived at a verdict and was advised that it had. The court looked at the verdict and handed the verdict to the clerk. The clerk read the jury found the defendant guilty on the second count. The court had seen the verdict before and it appeared to him at the time the wording of the verdict was the defendant was guilty on two counts. The court remarked he didn't read the verdict in that way. The verdict was returned to the jury, to the foreman, and the foreman changed the figure '2' to 'first and second,' as I recollect it now. The court then handed the verdict. to the clerk again who read it and it was to the effect that the jury found the defendant guilty as charged in the first and second counts. The jury was inquired of as to whether or not that was its verdict and there was not a negative response. In other words, all the jurors responded to the effect it was their verdict."

A similar question was passed upon by this court in the case of State v. Cary, 124 Kan. 219, 257 P. 719. In that case the jury returned a verdict of guilty on "one" count. In open court the judge inquired of the jury what it meant by the verdict and was informed that it meant the "first count." Thereupon the court had the foreman in the presence of the jury change the verdict from "one" count to "first count." As in the instant case, the verdict was then passed to the clerk and read after which the court inquired of each juror if the verdict as read was the verdict of the jury and received an affirmative answer from all jurors. It was held that the objection to the change in the form of the verdict was...