State v. Wilson, 47375
| Decision Date | 17 July 1974 |
| Docket Number | No. 47375,47375 |
| Citation | 215 Kan. 437,524 P.2d 224 |
| Parties | STATE of Kansas, Appellee, v. Earl WILSON, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The distinction between second degree murder and voluntary manslaughter is the presence or absence of malice.
2. An instruction that "Maliciously' means willfully doing a wrongful act without just cause or excuse,' is adequate to distinguish between second degree murder and voluntary manslaughter.
3. Instructions are not to be read singly but as a whole to determine their adequacy.
4. Admissibility of physical evidence is within the sound discretion of the court and is to be determined by the court on the basis of its relevance and connection with the accused and the crime charged.
5. Only where trial error adversely affects some substantial right of a defendant does it constitute prejudicial error.
6. The record in an action charging defendant with second degree murder is examined and it is held: The trial court (1) did not err in its instruction defining the term malice and in refusing to instruct on involuntary manslaughter; and (2) did not commit reversible error in admitting defendant's clothing into evidence and admitting hearsay testimony.
Patrick J. Hurley, Leavenworth, argued the cause and was on the brief for appellant.
Patrick J. Reardon, County Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for appellee.
Defendant appeals from conviction of murder in the second degree in violation of K.S.A. 1972 Supp. 21-3402.
On October 29, 1972, Cleotis Meeks, an inmate of the Kansas State Penitentiary at Lansing, fell from the fourth tier of cells to his death. Defendant Earl Wilson, another inmate who was fighting with Meeks immediately before his fall, was accused of having pushed Meeks to his death and charged with second degree murder. The facts presented in the record indicate witnesses, both inmate and prison corrections personnel, observed Meeks running from Wilson and another inmate, calling for help. Such was the altercation that the corrections personnel who arrived on the scene were not able to subdue the participants in the fight and went for help. After the corrections personnel had withdrawn from the fourth tier and gone for help, Meeks fell or was pushed to his death. Conflicting eye-witness testimony related two versions of the fall. Custodial officer Raymond Dunlap testified that as he and another officer were hurrying down the steps to get help, he looked back and saw defendant pushing Meeks under the guardrail toward the edge of the fourth tier. When next he observed the scene, Meeks was falling toward the bottom of the shaft four floors below. Another inmate, Jack W. Zumalt, testified he was standing on the ground floor of the cell house, noticed a commotion on the fourth tier, saw Meeks run along the walkway, flip over the top rail and fall to the ground floor. The defendant did not testify.
Murder in the second degree is the malicious killing of a human being, committed without deliberation or premeditation and not in the perpetration or attempt to perpetrate a felony. (K.S.A.1973 Supp. 21-3402.) It is a class B felony and conviction therefor brings a minimum sentence of five to fifteen years and a maximum sentence of life imprisonment. (K.S.A.1973 Supp. 21-4501(b).) Voluntary manslaughter is the unlawful killing of a human being without malice, which is done intentionally upon a sudden quarrel or in the heat of passion. (K.S.A.1973 Supp. 21-3403.) It is a class C felony drawing a minimum sentence of one to five years and a maximum of twenty years imprisonment. (K.S.A.1973 Supp. 21-4501(c).) The jury was instructed on second degree murder and on voluntary manslaughter. The distinction between the two homicides, other than the penalties, is the presence or absence of malice. The jury was also instructed, "Maliciously' means willfully doing a wrongful act without just cause or excuse.'
Defendant was found guilty of second degree murder. On appeal he contends the trial court's instruction defining malice was not sufficient to enable the jury to distinguish between the crime of second degree murder and voluntary manslaughter.
Definitions of the term malice approved in past decisions of this court include the definition given the jury in this case. (State v. Jensen, 197 Kan. 427, 417 P.2d 273.) It is the instruction recommended for use by PIK Criminal, Homicide Definitions § 56.04. When the definition of maliciously is read out of context and apart from the other instructions, defendant's argument of impreciseness may have some merit. Instructions are not to be read singly, however, but as a whole. (State v. Ingram, 211 Kan. 587, 506 P.2d 1148; State v. Blocker, 211 Kan. 185, 505 P.2d 1099.) Substituting the definition of maliciously for the word in the instruction on second degree murder, demonstrates the definition is most descriptive of the crime. Thus combined, the instruction for second degree murder reads as follows:
'To establish this charge each of the following claims must be proved:
We find no merit in defendant's contention that the instructions did not adequately distinguish between second degree murder and voluntary manslaughter.
Defendant next contends he was entitled to an instruction on involuntary manslaughter. Involuntary manslaughter is defined in K.S.A. 1973 Supp. 21-3404 as follows:
Involuntary manslaughter is distinguished from voluntary manslaughter and second degree murder by the lack of malice and intent to kill. The record on appeal does not reveal any specific evidence on the issue of intent to kill. The only theory of...
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