State v. Weyer, 46723

• Decision Date: 09 December 1972
• Docket Number: No. 46723,46723
• Parties: STATE of Kansas, Appellee, v. Donald W. WEYER, Appellant.
• Court: Kansas Supreme Court

Page 178

504 P.2d 178

210 Kan. 721

STATE of Kansas, Appellee, v. Donald W. WEYER, Appellant.

No. 46723.

Supreme Court of Kansas.

Dec. 9, 1972.

Syllabus by the Court

1. In cases where the crime charged may include some lesser crime it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes 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. (K.S.A.1971 Supp. 21-3107(3).)

2. In a prosecution wherein appellant was convicted of murder in the second degree, the record is examined and it is held the trial court erred in failing to instruct thejury on involuntary manslaughter, and new trial is ordered.

Kenneth V. Moses, Marysville, for appellant.

Keith W. Sprouse, Marysville (Vern Miller, Atty. Gen., on brief), for appellee.

HARMAN, Commissioner:

Appelland Donald W. Weyer was convicted by a jury of the offense of murder in the second degree as defined in K.S.A.1971 Supp. 21-3402. His motion for new trial was overruled, he was sentenced to confinement pursuant to K.S.A.1971 Supp. 21-4501(b) and he now appeals.

Jerome L. Gronquist, aged nineteen, was the victim of the alleged homicide which occurred near Waterville, Kansas, during the early morning hours of November 22, 1970.

The assertions of error necessary to be considered for proper disposition of this appeal require but brief outline of the tragic events revealed at trial.

Appellant Weyer, aged twenty-one, who was married but separated from his wife, had several times sought permission from Gleed Gronquist to go with his seventeen year old daughter Nancy, who was then living on her father's farm near Blue Rapids. This permission was denied. The last time Gleed accompanied his denial by grabbing appellant by the coat and shaking him. When Nancy Gronquist reached her eighteenth birthday she promptly left the family abode and moved into an apartment in Blue Rapids.

On the evening of November 21, 1970, appellant, his mother and stepfather, and Nancy attended a country western dance at a cafe in Greenleaf. Jerome and Larry Gronquist, sons of Gleed, were at the dance and during its course several times shoved appellant and Nancy, who were dancing together, and also shoved appellant's mother and stepfather. They directed epithets toward their sister Nancy. After further name-calling, threats against appellant and shoving by the Gronquist brothers appellant's mother and stepfather summoned law enforcement officers. First the city marshal came and later the sheriff of Washington county arrived at the scene. After the Gronquist group had been gone from the dance for a while the sheriff told appellant's group they could leave, which they did, departing about 1:00 a. m. Appellant and his stepfather each had a pistol which they had left in the glove compartment of their vehicle during the dance. Appellant evidently was in the habit of carrying pistol. Upon commencing the return trip appellant removed the pistols from the glove compartment, gave his stepfather the one owned by him and placed his own pistol on the dashboard. Nancy was seated in the front seat beside appellant who drove, and appellant's mother and stepfather sat in the rear.

Meanwhile Larry had driven back to the Gronquist farm home and about midnight awakened his father Gleed and informed him of Nancy's presence at the dance with appellant. Larry and his father in one car and Jerome and a friend in another car then proceeded toward Greenleaf in order to intercept appellant en route to return Nancy to Blue Rapids. This interception occurred in the town of Waterville, where the two Gronquist vehicles turned around in pursuit of the vehicle driven eastward by appellant. Just outside Waterville Jerome passed appellant, slammed on his brakes and stopped his vehicle immediately in front of that driven by appellant. At the same time Larry Gronquist drove his vehicle up closely behind appellant's car.

Jerome approached appellant's vehicle from the front while Larry and his father, each on a different side, approached it from the rear. From this point on, as revealed by a fragmented record, the testimony differed as to just what occurred. On behalf of the prosecution evidence was received from which it could fairly be said that the second of six shots fired from appellant's pistol during the ensuing melee was the one which ended Jerome's life, being one fired by appellant at a time when Jerome was about five feet away from appellant's automobile. At some point in the affray Larry secured appellant's pistol and threw it across the road.

Appellant and his mother testified for the defense. Appellant's version was that he first fired two warning shots through the open window of his vehicle, the first toward the rear where Larry was still sitting in his car and the second for Jerome's benefit-aimed between him and the vehicle he had just left; appellant told Larry to stop Jerome; the Gronquists rushed him and appellant then commenced struggling with them during which time other shots were fired from the gun, three or four or maybe more, be couldn't be sure how many; after the warning shots Jerome first rushed him, threatening him and coming in through the right car window; Jerome's head, arms and upper body were inside the car as he struggled for appellant's gun; someone grabbed appellant's neck and nearly tore his head off and he was knocked down in the seat; he sustained a bullet wound in the leg; thereafter he saw Jerome lying in the road and he then drove off toward Blue Rapids. Appellant denied shooting Jerome or that he had any intention of shooting him when he fired the warning shot.

Appellant's mother testified that after they stopped on the highway near Waterville Larry and Jerome approached appellant's car on the driver's side. She saw appellant fire one shot to the rear and she heard the second shot; after the second shot Jerome came on into appellant's car from his waist up. Larry had his arm inside the car as far as he could get it; the Gronquists were fighting for appellant's gun; Gleed grabbed appellant by the neck and pulled him down in the seat; other shots were fired, one of which struck her in the finger and the knee while she was struggling with Gleed; the third shot went through the roof of the car and the fourth hit Larry in the leg as he 'hollered'; she saw appellant's hands after the fourth shot sounded and they were empty. The gun possessed by appellant's stepfather was never fired.

Appellant first specifies as error the trial court's failure to instruct the jury as to the lesser included offense of involuntary manslaughter.

By way of background it may be stated that at trial up through rendition of the verdict appellant was represented by court-appointed counsel, Mr. John R. Elmborg. Evidently at some time after the motion for now trial had been filed and overruled but prior to sentencing appellant became dissatisfied with Mr. Elmborg and he was permitted to withdraw, present counsel was appointed and appellant was sentenced. The record of trial reveals the following colloquy concerning an instruction on involuntary manslaughter:

'MR. ELMBORG: I would like to propose that an instruction be given to the offense of involuntary manslaughter, your Honor.

'THE COURT: Involuntary manslaughter is defined by our new code and provides it is the unlawful killing of a human being without malice, which is done unintentionally in the commission of an unlawful act not amounting to a felony or in the commission of an unlawful act in an unlawful or wanton manner. The general rule as to instructions, if I understand the rule properly, is that the defendant in a criminal case is entitled to an instruction on any theory or defense which is supported by any substantive evidence regardless of how weak this evidence might be. Mr. Sprouse, do you have any feeling about this?

'MR. SPROUSE: Your Honor, the State would have no objection to the Court including such an instruction.

'MR. ELMBORG: (Interrupting) Your Honr, I think this is a point that I would like to discuss with my client before making the decision as to whether or not this should be requested.

'THE COURT: Very well, I can get this case for you and you might want to read it. We'll go off the record if you want to.

'(Whereupon there is a discussion had off the record.)

'MR. ELMBORG: Your Honor, I have discussed the question of whether or not to request an instruction on involuntary manslaughter with my client, at some length, and I think I have thoroughly advised him of the significance of the decision involved in deciding whether or not to request such an instruction. I think he is aware of the effect of this and it is my client's feeling that he does not want an instruction on involuntary manslaughter.

'MR. ELMBORG: May I state for the record in capsule form what I have told my client in this regard, your Honor. I have informed him that there is evidence in the record to support a finding of involuntary manslaughter, that this would be supported by testimony to the effect that he did indeed kill Jerome Gronquist, although unintentionally and without any malice. I have informed him of the maximum punishment that may be inflicted for the commission of such an offense and I have also informed him that if the jury is not instructed respecting involuntary manslaughter that it may not find him guilty of involuntary manslaughter, but that it may find him guilty only of second degree murder or voluntary manslaughter, each of which is an intentional killing, that it may acquit him on the basis of seld defense, but, more particularly, that it may not find him guilty of any offense. If it finds that his actions-that he did in fact kill Jerome Gronquist, and the jury further finds that this was unintentional, he must be acquitted.

'THE COURT: Very well, and he...