State v. Roth

• Decision Date: 09 March 1968
• Docket Number: No. 44990,44990
• Citation: 200 Kan. 677,438 P.2d 58
• Parties: STATE of Kansas, Appellee, v. Stephen ROTH, Appellant.
• Court: Kansas Supreme Court

Page 58

438 P.2d 58

200 Kan. 677

STATE of Kansas, Appellee, v. Stephen ROTH, Appellant.

No. 44990.

Supreme Court of Kansas.

March 9, 1968.

Syllabus by the Court

1. In a prosecution for fourth degree manslaughter, on a charge of unlawfully and feloniously causing death by violation of a speed limit, evidence of other similar traffic violations, such as mentioned in the opinion, is admissible under the provisions of K.S.A. 60-455.

2. Where evidence is admissible under the provisions of K.S.A. 60-455 as tending to prove intent, knowledge and absence of mistake or accident but is not admissible under the provisions of K.S.A. 60-421 to impair the credibility of the defendant who had taken the witness stand in his own defense, the trial court must so instruct the jury.

3. The general rule that cross-examination must be responsive to testimony given on direct examination or material or relevant thereto applies to cross-examination of an accused in a criminal case as to prior similar offenses. (What was stated in the second paragraph of the syllabus and the corresponding part of the opinion in State v. McCorvey, 199 Kan. 194, 428 P.2d 762, relating to cross-examination is disapproved.)

James H. Bradley, Olathe, argued the cause and was on the briefs, for appellant.

Hugh H. Kreamer, Asst. County Atty., argued the cause, and Robert Londerholm, Atty. Gen., and James W. Bouska, County Atty., were with him on the briefs, for appellee.

HATCHER, Commissioner.

This is a direct appeal from a conviction of fourth degree manslaughter under the provisions of K.S.A. 21-420, which provides:

'Every other killing of a human being, by the act, procurement or culpable negligence of another, which would be manslaughter at the common law, and which is not excusable or justifiable, or is not declared in this article to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree.'

The information charged the defendant with unlawfully and feloniously causing the death of Theodore Welch and Larry Schauble, by driving and operating an automobile in a west bound direction on Highway 50 at a speed in excess of the 45 mile speed limit, causing bodily injuries which were the proximate cause of their deaths.

U.S. Highway No. 50 at the scene of the collision has four lanes running in an east-west direction. A medial strip approximately 30 feet in width separates the two double lanes of traffic. Glenwood is a two lane public street running in a north-south direction and intersects U. S. Highway No. 50 where the collision occurred. Stop signs are erected for those vehicles using Glenwood entering upon or proceeding through U. S. Highway No. 50. Prior to trial it had been stipulated that the statutory speed limit on U. S. Highway No. 50 was 45 miles per hour and that signs had been adequately erected giving notice to the users of this highway of such speed limit. The collision occurred at this intersection in the defendant's westbound double lane of traffic.

At the end of the State's case, the court directed an acquittal of the defendant as to the death of the decedent, Larry Schauble. The defendant was convicted of fourth degree manslaughter on the death of Theodore Welch and sentenced to imprisonment in the Kansas State Industrial Reformatory at Hutchinson for a period not exceeding two years. The defendant has appealed.

The appellant objects to evidence of other traffic violations elicited on his cross-examination.

The facts from which this issue stems may be briefly stated.

The appellant took the witness stand in his own defense. On cross-examination, over his objection, the State was permitted to obtain the fact that he had previously pleaded guilty to (1) illegal passing, (2) failure to yield the right-of-way, (3) reckless driving and (4) failure to stop at a stop sign.

When the appellant objected to the line of questioning it was summarily overruled by the trial court. The court did not initiate inquiry as for what purpose the questions were asked and the State volunteered none.

The appellant contends that the evidence was not admissible for the purpose of impairing his credibility under the provisions of K.S.A. 60-421 or for the purpose of proving motive, knowledge, etc. under K.S.A. 60-455. The appellee concedes that the evidence was not admissible under K.S.A. 60-421 as the appellant had not introduced evidence solely for the purpose of supporting his credibility, but contends that it was admissible and the cross-examination proper for the purpose of proving motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident under the provisions of K.S.A. 60-455.

The appellant counters with the suggestion that he was being charged with fourth degree manslaughter and not for traffic violations, and that the offenses not being related they are not admissible under the provisions of K.S.A. 60-455, citing State v. Myrick, 18s Kan. 1056, 317 P.2d 485.

We cannot agree with appellant's last contention. Although he was prosecuted for fourth degree manslaughter, the gravamen of the offense was the traffic violation which was alleged to have caused the death. Every traffic violation of the nature mentioned here is a potential manslaughter weapon. The only thing lacking is a victim in the violator's path. We are forced to conclude that the violations were related to the one under consideration. They tended to prove intent, knowledge and absence of mistake or accident, and they were admissible for such purposes.

Appellant's next contention presents a more difficult problem. He contends that the trial court erred in failing to instruct the jury as to the limited purpose for which evidence of previous traffic violations could be considered. We are inclined to agree.

The appellee contends that the appellant is estopped from complaining of the failure to give the instruction because he did not request an instruction and failed to bring the matter to the trial court's attention on motion for a new trial.

The appellant did not request an instruction limiting the purpose of his testimony as to previous convictions, but it does appear he called the matter to the attention of the trial court on his motion for a new trial. Paragraphs 4 and 5 of the motion read:

'4. The Court erred, over objection, admitting evidence of defendant's past convictions of traffic violations by way of his cross-examination without thereafter admonishing the jury the limited purpose in which they could receive and consider such evidence.

'5. The Court erred, over objections, in permitting the defendant to be cross-examined on the matter of his prior convictions of traffic violations without the plaintiff being first required to state the reasons or grounds why such questions were to be propounded.' (Emphasis supplied.)

The appellee is confused as to the contents of the motion for a new trial.

In State v. McCorvey, 199 Kan. 194, 428 P.2d 762, we held:

'K.S.A. 60-455 defines the purpose for which evidence of similar but independent offenses may be considered, and the district court should instruct the jury as to the limited purpose for which such evidence may be considered.' (Syl. 3. See, also, State v. Taylor, 198 Kan. 290, 424 P.2d 612.)

The instruction should have been given. The remaining question is, did the appellant waive the error by failing to request the instruction? We think not under the circumstances of this case.

The statutory provisions covering instructions in criminal cases throw some light on the question. K.S.A. 62-1447 provides:

'The judge must charge the jury in writing and the charge shall be filed among the papers of the cause. In charging the jury he must state to them all matter of law which are necessary for their information in giving their verdict. * * *'

The statute places the positive duty upon the trial court to fairly present the law of the case on all salient features. Of course, if this is done a party desiring additional or special instructions must make a request. In dealing with the necessity of an instruction on self defense, regardless of a request therefor, this court stated in considering self defense a salient feature in State v. Smith, 16s Kan. 230, 237, 167 P.2d 594, 599, as follows:

'In those cases where self-defense is invoked by the proof we conclude it is the duty of the court to charge the jury on that issue irrespective of whether there has been a request for an instruction, regardless of whether counsel has been called upon and failed to formulate a theory on which it could be given, and notwithstanding such counsel has stated he believes its submission rests in the court's discretion.'

In view of the fact that K.S.A. 60-421 specifically forbids the use of testimony of previous crimes for the purpose of impairing a witness's credibility, it is our opinion that when such evidence is introduced under K.S.A. 60-455 its restriction to the purpose of that section becomes a salient feature in the case and failure to so instruct is error.

It should be noted that the appellant had some basis for contending that the evidence was not admissible for any purpose. Had he requested an instruction limiting its use he would have admitted its admissibility for some purpose.

The failure to give an instruction limiting the purpose for which the evidence was to be considered, regardless of a request, was of such a prejudicial nature as to require the granting of a new trial.

Other alleged trial errors have been examined and found to be without merit.

While what has been said disposes of the issues raised on appeal, the majority of the court would go further and, for the benefit of the parties on the new trial, disapprove the practice of questioning the accused on cross-examination as to other similar offenses when such questions were not responsive or related to testimony given on direct examination. Prior traffic violations were unrelated to the...