State v. Robinson, 40742

• Decision Date: 08 March 1958
• Docket Number: No. 40742,40742
• Citation: 322 P.2d 767,182 Kan. 505
• Parties: STATE of Kansas, Appellee, v. William S. ROBINSON, Appellant.
• Court: Kansas Supreme Court

Page 767

322 P.2d 767

182 Kan. 505

STATE of Kansas, Appellee, v. William S. ROBINSON, Appellant.

No. 40742.

Supreme Court of Kansas.

March 8, 1958.

Syllabus by the Court

The record is examined in a criminal prosecution and it is held that the trial court did not err: (1) in failing and refusing to instruct the jury upon the voluntary or involuntary character of defendant's written statement; (2) in refusing to place before the jury all of the evidence taken by it concerning the voluntariness or involuntariness of the defendant's statement; (3) in admitting into evidence the statement made by the defendant; (4) in not instructing the jury on the lesser crime of assault and battery; (5) in denying the motions for dismissal and for new trial; and (6) in admitting certain testimony claimed to be illegal and prejudicial.

Charles S. Scott, Topeka, argued the cause, and Elisha Scott, John J. Scott and Samuel C. Jackson, Topeka, were with him on the briefs, for appellant.

J. Richard Foth, Asst. County Atty., Topeka, argued the cause, and John Anderson, Jr., Atty. Gen., and Roy L. Bulkley, County Atty., Topeka, were with him on the briefs, for appellee.

HALL, Justice.

This is an appeal from a conviction of first degree manslaughter.

William S. Robinson, the defendant, was charged by information in the district court of Shawnee County, Kansas, with the offense of first degree manslaughter. He was tried before a jury and convicted on the 14th day of February, 1957.

The defendant was stationed at the Forbes Air Base in Topeka, Kansas. On the 5th day of September, 1956, at about 11:00 p. m. he, airman Murray, and their girl friends parked their car near 4th and Kansas Avenues in Topeka. The defendant and Murray went across the street to a tavern which was located on East 4th Street. The defendant noticed a man going by the tavern who appeared to be a person with whom he had some recent trouble. The defendant left the tavern and followed the man west on 4th Street to the southeast corner of 4th and Kansas Avenues. An altercation occurred between the two men. The defendant then turned and walked or ran across the street from the southeast to the northeast corner of the intersection.

The deceased, Herbert Mitchell, was either standing or walking near the northeast corner of 4th and Kansas Avenues. In either event, the defendant struck Mitchell in such a manner as to cause him to fall backward striking his head on the sidewalk. Mitchell died the following day.

The information charged Robinson as follows:

'* * * that William S. Robinson, * * * did unlawfully, feloniously and willfully kill a human being, to wit: Herbert A. Mitchell, without design to effect death, by the acts of the said William S. Robinson, while said William S. Robinson was engaged in the perpetration of a crime not amounting to a felony, namely, an assault and battery upon the said Herbert A. Mitchell, which said assault and battery was committed by the said William S. Robinson with his hands and fists, striking said Herbert A. Mitchell upon and about the head and throat, thereby causing the death of said Herbert A. Mitchell, when said killing would have been murder at the common law, * * *.'

The defendant makes eight specifications of error on appeal.

Specifications of error 1, 4, and 5 are as follows:

'1. The Court erred in failing and refusing to instruct the jury on matters for their consideration touching upon the voluntary or the involuntary character of the State's exhibit number 1, to-wit: a written statement made by the appellant.'

'4. The Court erred in refusing to permit evidence to be offered in the presence of the jury touching upon the voluntary or involuntary character of State's exhibit number 1, to-wit: a written statement of the appellant.

'5. The Court erred in the admission of the State's exhibit number 1, to-wit; appellant's written statement.'

These alleged errors have reference to a written statement made by the defendant and admitted into evidence.

The defendant was first questioned by the police on September 6, 1956. A detective wrote down the substance of his answers. A statement was submitted to him and he read and signed it. On the 7th day of September he was again questioned and a formal statement was taken by the assistant county attorney.

During its case in chief the State proffered the second statement as its exhibit number 1.

A recess was called and the court, out of the presence of the jury, took testimony upon the admissibility of the statement. The court heard the testimony of the officers of the Topeka Police Department, the court reporter and the defendant.

At the conclusion of the hearing the State renewed its offer to place the statement in evidence and the court admitted it. The court said:

'The Court: As a result of this investigation here I am finding that the statement marked Exhibit I was freely and voluntarily given and was not given under duress, was not given as a result of any promises and that it should be admitted into evidence. I will overrule the defendant's objection to its admission.'

Counsel for the defendant made objection and the following colloquy occurred:

'Mr. Scott [counsel for defendant]: Just a moment, for the purpose of the record, Your Honor, I want to get this in the record; a showing that this statement was freely and voluntarily given must also be presented in the presence of the jury after there has been a hearing in the absence of it. It's entirely up to the Court if he wants to listen to it. I think the jury should know the circumstances under which this statement was made.

'The Court: Do you mean by that that everything should be read that we have just heard from the same testimony?

'Mr. Scott: The same evidence, yes, in order that the jury may properly consider the statement as to its weight; it must be brought to their attention.

'The Court: Your objection in that regard is overruled, sir. * * *' (Emphasis ours.)

In submitting the case to the jury the court did not instruct on the question of voluntary or involuntariness of the statement. The record does not show any objection or request for such instruction. The court did instruct on the questions of weight and credibility in the following language:

'19.

'There was admitted as evidence in this case, State's exhibit number one which is a transcript of a statement made by the defendant on September 7, 1956. In this connection you are instructed that it is your duty to consider the truth or falsity of the statements made in exhibit one along with all the other evidence introduced in the case, and the truth or falsity of the statements made in the statement are matters for the jury to determine.'

Defendant also contends the statement should not have been admitted because he was not advised of his constitutional rights. State v. Moore, 61 Kan. 732, 60 P. 748; State v. Oberst, 127 Kan. 412, 273 P. 490; State v. Seward, 163 Kan. 136, 181 P.2d 478; and other general authorities.

The record presented on appeal is very complete. There are pages of testimony relating to the defendant's statement. We have examined it thoroughly and find that the defendant was properly advised of his constitutional rights. There is also no evidence to show coercion, constraint, promise, inducement of the defendant to make the statement, or that it was brought about by any improper means. No rules of evidence touching its admissibility were breached in any way.

The court considered the defendant's statement as an admission against interest and not a confession. We believe rightfully so.

The distinction between the two has long been recognized in this jurisdiction. State v. Campbell, 73 Kan. 688, 85 P. 784, 9 L.R.A.,N.S., 533; State v. Myers, 154 Kan. 648, 121 P.2d 286; State v. Turner, 82 Kan. 787, 109 P. 654, 32 L.R.A.,N.S., 772; State v. Aguirre, 167 Kan. 266, 206 P.2d 118; State v. Adams, 85 Kan. 435, 116 P. 608, 35 L.R.A.,N.S., 870; State v. Harding, 142 Kan. 347, 46 P.2d 617; State v. Criger, 151 Kan. 176, 98 P.2d 133; State v. Smith, 158 Kan. 645, 149 P.2d 600; State v. Fouts, 169 Kan. 686, 221 P.2d 841; State v. Stewart, 179 Kan. 445, 296 P.2d 1071; State v. Fields, 182 Kan. 180, 318 P.2d 1018.

And in 20 Am.Jur., Evidence, § 478:

'* * * To give a statement the binding force of a confession, its distinctive feature must be an acknowledgment of guilt without an exculpating statement or explanation, * * *.

'A confession, defined as an acknowledgment, in express terms, by a party in a criminal case, of his guilt of the crime charged, does not, properly speaking, comprehend an admission, declaration, or other statement by the accused, direct or implied, of facts pertinent to the issue which, in connection with other facts, tend to prove his guilt, but which are not in themselves sufficient to authorize a conviction. * * *' (P. 417.)

And in 20 Am.Jur., Evidence, § 560:

'* * * The majority rule, however, recognizes the distinction between an admission of an independent fact and a confession which amounts to an acknowledgment of guilt and asserts the principle that it is unnecessary for the prosecution to prove that an admission, as distinguished from a confession, was freely and voluntarily made without improper inducement in order to have it admitted in evidence. * * * Statements in the nature of admissions as distinguished from confessions are not involuntary merely because of the fact that they were given by an accused in court under process, or in obedience to a subpoena, or because of the fact that the accused was not advised of his constitutional rights, such as the privilege against self-incrimination and the right to the aid of counsel, or warned that his statements might be used against him, or because of the fact that he was under arrest at the time he spoke. * * *' (Pp. 474, 475.)

In a late case, State v. Fields, supra, we repeated the test to be applied in determining the...