State v. Roberson, 46620

• Decision Date: 19 July 1972
• Docket Number: No. 46620,46620
• Citation: 499 P.2d 1137,210 Kan. 209
• Parties: STATE of Kansas, Appellee, v. Bobby N. ROBERSON, Appellant.
• Court: Kansas Supreme Court

Page 1137

499 P.2d 1137

210 Kan. 209

STATE of Kansas, Appellee, v. Bobby N. ROBERSON, Appellant.

No. 46620.

Supreme Court of Kansas.

July 19, 1972.

Syllabus by the Court

1. In a prosecution for homicide it is the duty of the trial court to instruct the jury not only as to the principal offense charged but also as to all lesser offenses of which the accused might be found guilty under the evidence presented, even though the evidence as to the lesser offense or offenses may not be strong.

2. Malice is an essential and indispensable ingredient of the offense of murder in the second degree as the same is defined in K.S.A. 21-402 (now K.S.A.1971 Supp. 21-3402).

3. As it relates to the crime of murder, the term 'willfully' is not the legal equivalent of 'maliciously.'

4. One of the elements necessary to constitute the offense of third-degree manslaughter as defined in K.S.A. 21-413 is that the killing be committed in the heat of passion.

The record is examined in a prosecution for murder in the second degree and for reasons set forth in the opinion it is held (1) the trial court erred (a) in failing to instruct on first-degree manslaughter, (b) in failing to instruct on the element of malice as it relates to second-degree murder and (c) in failing to instruct on the element of heat of passion in relation to third-degree manslaughter as defined in K.S.A. 21-413, and (2) the information filed by the state failed to include an essential ingredient of second-degree murder, i. e., malice.

Charles S. Scott, of Scott, Scott, Scott & Jackson, Topeka, argued the cause and was on the brief for appellant.

John H. Taylor, County Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for appellee.

FONTRON, Justice:

The defendant, Bobby N. Roberson, was convicted of murder in the second degree. He was sentenced to be confined in the Kansas State Penitentiary for a term of not less than ten years. He has appealed from that judgment.

The setting for the tragedy was the 200 block on East Ninth Street in Junction City, Kansas, an area where it was a common practice, so we are told, for people to assemble on Saturday for social purposes, especially when Saturday came at the last of the month. The date of the homicide was August 30, 1969; the time, shortly before 3:30 p. m.

Earlier that day the defendant and his wife had liberally partaken of alcoholic drink, winding up about noon at the Satalite Cafe where they purchased an additional fifth of scotch whiskey which they and some of their friends consumed, interspersed with portions of beer. Sometime after 2:30 Mrs. Roberson felt the urge of nature and finding the toilet facilities in use at the Satalite she proceeded, in the company of her husband, to the nearby business establishment of Tillie Polite, a place known to its patrons as the Polite Cafe.

As Mrs. Roberson threaded her way to the bathroom, she passed near a white man who, seated at the counter, was conversing with a colored acquaintance across the bar. This white worthy made a derogatory remark about Mrs. Roberson which was overheard and resented by her husband. A loud verbal encounter thereupon ensued, which appears to have been accompanied by certain physical manifestations such as pushing and the knocking off of hats.

At this point the proprietress took umbrage at the altercation and, belying the quality suggested by her surname, is reported to have pulled a pistol, at the point of which, after some show of profanity on both sides, she escorted Mr. Roberson and his wife to the door and precipitated their departure.

Repairing to his car, which was parked outside, the defendant told his wife to go down the street-that it seemed there was going to be trouble-and got his shotgun from the trunk of his car. He testified that he could see the decedent's shadow standing behind the door and did not know whether she was going to shoot or not; that when he stepped inside the door she fired, and he fired. Roberson's shot struck Tillie Polite in the neck and upper chest, knocking her to the floor and resulting in her premature demise.

After this exchange of gun fire the defendant departed the scene, first taking his wife to a friend's house and then driving around for a short time until stopped and taken into custody by a member of the highway patrol. The defendant claimed at first that he was Jimmie Roberson, Bobby's brother-which proved to be an ineffective artifice of short duration. Upon being given the Miranda warning, Mr. Roberson responded he did not wish to talk, and his wishes in this regard were respected. However, shortly after other officers arrived on the scene Roberson approached one of them and said 'I'm going to level with you, I'm Bobby Roberson.' He also said that Tillie had a Luger and was going to shoot him; that he might be going to jail for a long time but was not going to the graveyard; and that 'you've got to protect yourself.'

A number of trial errors are asserted in the defendant's statement of points. The first claim of error relates to the refusal of the trial court to instruct the jury on first-degree manslaughter as a lesser included offense of murder, despite the defendant's request for an instruction of this nature.

First-degree manslaughter is defined in K.S.A. 21-407 (which has since been repealed), 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 perpetrate any crime or misdemeanor, not amounting to a felony, in cases when such a killing would be murder at the common law, shall be deemed manslaughter in the first degree.'

Long ago this court determined that the misdemeanor which the statute contemplates may be an offense which is directed against the deceased victim himself, and that the term 'misdemeanor' includes the offense of simple assault and battery. (State v. Spendlove, 47 Kan. 160, 28 P. 994; State v. Bassnett, 80 Kan. 392, 102 P. 461; State v. Singleton, 67 Kan. 803, 74 P. 243; State v. Merriweather, 136 Kan. 337, 15 P.2d 425; State v. Booker, 200 Kan. 166, 434 P.2d 801.)

It is also a rule of respectable lineage in this jurisdiction that where, in a criminal prosecution, the evidence is such as to support a finding of guilty of an offense lesser than but included within the more serious offense on which the accused is being tried, the trial court should instruct the jury as to the lesser included charge. As the rule relates to homicides, this court said in State v. Fouts, 169 Kan. 686, 221 P.2d 841:

'In prosecutions for homicide it is the duty of the trial court to instruct the jury, not only as to the offense charged but as to all lesser offenses of which the accused might be found guilty under the information and upon the evidence adduced, even though such instructions have not been requested or have been objected to.' (Syl. 3.)

In the Merriweather case, the accused was charged with first-degree murder and the trial court, in its charge to the jury, included an instruction on first-degree manslaughter as a lesser included offense. The defendant was convicted of manslaughter, and on appeal he assailed the giving of the instruction as error. In rejecting the contention, this court said:

'. . . Defendant complains because manslaughter in the first degree was thus submitted to the jury. The evidence was susceptible of an interpretation warranting the instruction. It was not necessary that the 'crime or misdemeanor not amounting to a felony' should be independent of and separate from the homicide, and defendant would have had good ground to complain if the instruction had not been given. . . .' (136 Kan. p. 338, 15 P.2d p. 426.)

This language was quoted with approval in our more recent case of State v. Booker, supra.

In expounding the same principle in a somewhat earlier era the court, in State v. McAnarney, 70 Kan. 679, 79 P. 137, had this to say:

'. . . So it has been repeatedly held that if there is slight evidence of a lower degree of an offense, although it may appear to the court to be weak and unsatisfactory, the question should be submitted to the jury, and a court is only justified in refusing to charge the jury on the lower degree of homicide when the testimony shows beyond question that the defendant is guilty of the higher offense. (Citing cases.)' (p. 686, 79 P. p. 139.)

Although the evidence as it might relate to first-degree manslaughter is far from overwhelming in this case, we consider it sufficient to have required the court to instruct upon the issue. The accused had been imbibing heavily during the day and there was evidence from which the jury might well infer that by 3:30 in the afternoon he was in a confused and maudlin state of mind. No prior animus toward Tillie Polite may be deduced from the record. On the contrary, it would appear the defendant had assisted the deceased in carrying some groceries that very morning and that the two of them had previously gone on fishing expeditions together.

There is testimony in the record that the deceased, with gun firmly in hand, had followed the defendant and his wife all the way to the door of the restaurant; that she opened the door and was standing on the step with her gun in hand; that as the defendant took his gun from the car-which required some...