State v. Spendlove

• Decision Date: 10 October 1891
• Citation: 47 Kan. 160,28 P. 994
• Parties: THE STATE OF KANSAS v. JOSEPH J. SPENDLOVE
• Court: Kansas Supreme Court

28 P. 994

47 Kan. 160

THE STATE OF KANSAS v. JOSEPH J. SPENDLOVE

Supreme Court of Kansas

October 10, 1891

Decided July, 1891

Appeal from Shawnee District Court.

PROSECUTION for murder in the first degree. From a conviction for manslaughter in the first degree, at the January term, 1891 the defendant, Spendlove, appeals. The facts are substantially stated in The State v. Spendlove, 44 Kan. 1-11, and in the opinion herein, filed on October 10 1891.

Judgment affirmed.

A. H Case, J. S. Ensminger, and Charles Curtis, for appellant.

John N. Ives, attorney general, and R. B. Welch, county attorney, for The State.

HORTON C. J. VALENTINE, J., concurring. JOHNSTON, J., concurs in part.

OPINION

HORTON, C. J.:

An information was filed in the district court of Shawnee county charging Joseph J. Spendlove with murder in the first degree, in killing and murdering Gustave Werner. He was tried at the September term, 1889, of the district court of said county, convicted of murder in the second degree, and sentenced to imprisonment for the term of 21 years. He appealed, and this court reversed the judgment at its January term, 1890. ( The State v. Spendlove, 44 Kan. 1 at 1-11, 24 P. 67.) After the case was reversed, and on the 27th day of Septemder, 1890, without leave of court and without notice to the defendant, the county attorney filed an amended information, in which he charged the defendant with murder in the first degree. The defendant filed a motion to quash this amended information, and set up, with others, the following reason: "That said amended information was filed by the county attorney after the defendant had entered a plea of not guilty in the case, and without leave of the court, and without the notice, knowledge or consent of the defendant." After the motion to quash was filed, but before it was passed upon, the prosecution applied to the court to indorse the names of additional witnesses upon the amended information. The defendant objected, but the court granted the application, and thereupon the defendant excepted, and gave notice that unless another copy of the amended information, with the additional names indorsed thereon, was served upon the defendant, he would, at the proper time, object to being tried upon the amended information. The motion to quash was overruled by the court, to which ruling the defendant at the time excepted. The defendant demanded a trial upon the old information, refused to plead to the amended information, and objected to the introduction of evidence under the amended information. All of these motions were overruled by the court, and excepted to by the defendant. He was tried upon the amended information, found guilty of manslaughter in the first degree, and sentenced to imprisonment in the penitentiary for 16 years. From this he appeals to this court.

Section 72 of the criminal procedure reads:

"An information may be amended in matter of substance or form at any time before the defendant pleads, without leave. The information may be amended on the trial as to all matters of form, at the discretion of the court, when the same can be done without prejudice to the rights of the defendant. No amendment shall cause any delay of the trial, unless for good cause, shown by affidavit."

It has already been decided by this court that, after a new trial has been granted, the attorney for the state, with consent of the court, may enter a nolle prosequi, and thereafter the defendant may be put upon his trial and convicted upon a new information, charging the identical offense set forth in the prior one. (The State v. Hart, 33 Kan. 218, 6 P. 288.) The amended information in this case was filed on the 27th of September, 1890. The motion to quash was filed on the 13th day of December, 1890. This motion was overruled on the 26th day of January, 1891. No motion was made to strike the amended information from the files. When the motions to indorse additional names and to quash the amended information were presented to the court, the court's attention was thereby called to the matters contained in the new information, and when one motion was allowed and the other overruled, the court thereby gave permission for the new information to be substituted for the old one. The amended information, therefore, was filed with leave of the court. From and after January 26, 1891, the amended information occupied the same position as if the court had expressly allowed it to be filed. When the defendant refused to plead to this information, the court properly directed a plea of not guilty to be entered. The amended information was filed in ample time, and as the trial court permitted the same to be substituted, no error prejudicial to the rights of the defendant can be fairly founded upon the rulings of the court in refusing to try the defendant upon the original information, or in requiring the defendant to be tried upon the amended or substituted information.

Upon the trial, after instructing the jury concerning murder in the first and the second degrees, the district court further instructed the jury that --

"Next, as to manslaughter in the first degree. To constitute manslaughter in the first degree, the act must be the killing of a human being without a design to effect death, by the act, procurement, or culpable negligence of another person, while such other person is engaged in the perpetration of, or attempting to perpetrate, some crime or misdemeanor, not amounting to felony, in case where such killing would be murder at the common law. . . . In this case Joseph J. Spendlove is charged with the crime of murder in the first degree, as recited in the amended information, and while this is nominally the charge made in the amended information, in contemplation of law, however, it includes the charge of murder in the second degree, and the charge of manslaughter in each of the four degrees described in the statutes of the state, as already explained, and the amended information would allow a verdict of guilty in any of these minor offenses, provided the evidence in the case would warrant such a verdict. . . . If the guilt of the defendant is not proven to be that of murder in the first degree or second degree, or of manslaughter in the first degree, beyond a reasonable doubt, then you may proceed to inquire whether he is guilty of manslaughter in the second degree."

These instructions were properly excepted to. It is contended upon the part of the defendant that it was error to give the instructions referred to, and it is further contended that there was no evidence introduced upon the trial proving or tending to prove a case of manslaughter in the first degree. We are therefore called upon to construe § 12 of chapter 31, of the act regulating crimes and punishments. (Gen. Stat. of 1889, P 2133.) That is the section under which the defendant was convicted. It reads:

"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 killing would be murder at the common law, shall be deemed manslaughter in the first degree."

This section appears in chapter 48 as § 7 of the Territorial Laws of Kansas for 1855. It has been continued in force since that time. (Terr. Stat. of Kan. 1859, ch. 28, § 7; Comp. Laws of 1862, ch. 33, § 7; Gen. Stat. of 1868, ch. 33, § 12; Comp. Laws of 1879, ch. 31, § 12; Gen. Stat. of 1889, P 2133.)

In support of the contention of the defendant, it is said that § 12 of chapter 31 was borrowed from Missouri; that, as the supreme court of that state has decided that, to bring a case under this statute within manslaughter in the first degree, it is necessary to show the accused was committing, or attempting to commit, some misdemeanor other than intentional violence upon the person killed; that the facts in this case conclusively establish that the instruction concerning manslaughter in the first degree was wholly applicable; and that the verdict was without any evidence whatever to support it. The claim is, that the jury might as well have found the defendant guilty of manslaughter in the first degree in assisting Werner in the commission of self-murder, or of manslaughter in the first degree for the willful killing of an unborn child.

Our statute was evidently taken from Missouri, as the Missouri statute is identical with it. (Rev. Stat. Mo. 1879, § 1238.) But the rule of Bemis v. Becker, 1 Kan. 226, that whatever construction has been given to the statute by the courts of Missouri must follow it to this state, does not hold good, because the supreme court of Missouri, prior to 1855, when this statute was incorporated into the body of the criminal laws of Kansas, had not judicially construed or interpreted it. In 1871, long after the statute referred to was first adopted by the legislature of Kansas, the supreme court of Missouri, in The State v. Sloan, 47 Mo. 604, construed the statute as before stated. In support of its decision it referred to the following cases from New York: The People v. Butler, 3 Parker's Crim. Rep. 377; The People v. Sheehan, 49 Barb. 217; The People v. Rector, 19 Wend. 605. In The State v. Downs, 91 Mo. 19, 3 S.W. 219, decided in 1886, the case of The State v. Sloan was approved.

From 1838 to 1867, and for some time after that year, New York had a statute similar to the statute of Missouri and our own. (2 N. Y. R. S. 656-7.) Since then the statute has been changed in New York, and manslaughter in the first degree is now defined as follows:

"In a case other than one of those specified in the §§ 183, 184, and 185, homicide, not being...