State v. Winters

• Decision Date: 11 December 1909
• Docket Number: 16,625
• Citation: 105 P. 516,81 Kan. 414
• Parties: THE STATE OF KANSAS, Appellee, v. FRANK WINTERS, Appellant
• Court: Kansas Supreme Court

105 P. 516

81 Kan. 414

THE STATE OF KANSAS, Appellee, v. FRANK WINTERS, Appellant

No. 16,625

Supreme Court of Kansas

December 11, 1909

Decided July, 1909.

Appeal from Pawnee district court; CHARLES E. LOBDELL, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Statutory Duty to Instruct--Waiver. The statute providing that the trial judge in a criminal case must state to the jury all matters of law necessary to enable them to give a verdict does not express a public policy requiring the nullification of all proceedings in which it is not strictly observed. It merely prescribes a rule of criminal procedure the benefits of which a defendant may waive.

2. CRIMINAL LAW Waiver of Instructions on Lesser Degrees and Offenses. Generally a defendant in a criminal case may waive instructions upon lesser degrees and lesser offenses embraced in the principal crime charged in the information by failing to make a timely request for them; and, a fortiori, he does so by objecting to the giving of such instructions.

3. CRIMINAL LAW Verdict of Guilty of Higher Offense -- Instructions on Lesser Offense Immaterial. Generally a verdict of guilty of a higher offense or degree, based upon satisfactory evidence and correct instructions relating to it, renders error in giving or refusing instructions upon inferior degrees or offenses immaterial.

4. CRIMINAL LAW Procedure Discussed. Limitations upon the rules stated in paragraphs 2 and 3 discussed.

Carr W Taylor, and George A. Neeley, for the appellant.

Fred S. Jackson, attorney-general, and W. H. Vernon, jr., county attorney, for the appellee.

OPINION

BURCH, J.:

The appellant was convicted of the crime of assault with a deadly weapon--a gun and gun barrel--with intent to kill. He was traveling overland with his wife in a wagon. Parties who were afterward witnesses at the trial were passing near where the appellant's wagon stood when they discovered him in the act of kicking the prostrate body of his victim. He halted them with a threat that he would blow their brains out and said he had killed a man there, a Mexican, and that if the Mexican were not dead he would finish him. He compelled the parties whom he had arrested to go to the place where the body lay, and when it was approached he commenced kicking it again. The Mexican was groaning, but was unconscious. He was denuded of clothing, except shoes. Pieces of his clothing were lying about. His head was bloody and bleeding and there were a number of wounds on other parts of his body. His head had received so many blows on top and at the back that it was bruised and literally slit into pieces. Any one of the blows would have rendered him unconscious. These wounds might have been produced by a gun barrel used as a club. The appellant showed the witnesses a gun with which he said he struck the Mexican and said he broke the stock and bent the barrel in doing so. He said he was going to take the body, hog-tie it, put it on the back of his wagon and destroy the evidence. His wife wanted him to hitch up and leave, and he knocked her down. He compelled one of the witnesses, at the point of a revolver, to hitch up his team for him. On the trial he and his wife told the story of an attack on them by some Mexicans and of resistance in self-defense.

The state requested the court to instruct the jury on the lesser offenses embraced in the crime charged in the information. The appellant's attorney objected, his objection was sustained, and no instruction was given relating to assault and battery. The appellant now argues that the statute requiring the court in charging the jury to state all matters of law necessary for their information in giving their verdict (Crim. Code, § 236) is mandatory; that no request for such an instruction is necessary; and that a defendant in a criminal case can not waive the requirement of the statute, because it expresses the public policy of the state in respect to this feature of criminal procedure.

Very early in the history of the state it was held that the statute is imperative and should be obeyed without request. In Craft v. The State of Kansas, 3 Kan. 450, the defendant was convicted of murder in the first degree. No instructions relating to inferior degrees were requested or given. The court said:

"Another assignment of error is that the court neglected to inform the jury what constituted murder in the second degree and the four degrees of manslaughter. The statute provides that the court in charging the jury 'must state to them all matters of law which are necessary for their information in giving their verdict.'

"It also provides, in substance, that upon a charge of murder in the first degree the defendant may be convicted of any offense necessarily included therein, which would embrace murder in the second degree and the various degrees of manslaughter. Now, inasmuch as it is very manifest that murder in the second degree and all the grades of manslaughter are necessarily included in the charge of murder in the first degree, it was the imperative duty of the court, made so by the statute, to explain all of them to the jury. As the provision is plainly imperative, there is no necessity for attempting to sustain it by reason. It was error to omit to do so." (Page 485.)

In the case of The State v. Grubb, 55 Kan. 678, 41 P. 951, there was a question whether under the evidence the completed crime of rape had been committed. The court said:

"Although the defendant did not ask any instruction as to the law of an attempt to commit the crime, yet we think the court ought to have informed the jury upon the subject." (Page 680.)

These cases sufficiently illustrate the peremptory character of the statute. Very soon, however, it became apparent that a reversal ought not to follow every failure to obey the statute. In the case of The State v. Dickson, 6 Kan. 209, the syllabus reads:

"And when the instructions complained of relate to a degree of crime inferior to the principal offense charged in the information, and inferior to that of which the defendant is convicted, they will be deemed not to have prejudiced the defendant, whether erroneous or not."

This rule was given a place in the syllabus of the decision in the case of The State v. Potter, 15 Kan. 302, which also announces the following principle:

"If the court in its instructions gives in general terms the elements of the crime charged, and it is not asked by defendant to enlarge upon and explain further any particular element or feature thereof, no error has been committed in failing to give fuller and more explicit instructions which will justify a reversal."

The ruling in The State v. Dickson was recognized but not discussed in the cases of The State v. Rhea, 25 Kan. 576, and The State v. Yarborough, 39 Kan. 581, 18 P. 474. In the case of The State v. Reed, 53 Kan. 767, 37 P. 174, the defendant was charged with murder in the first degree and convicted of murder in the second degree. No instruction relating to manslaughter was asked or given. The court said:

"There is a further complaint that the court failed to submit an instruction upon manslaughter in the second degree. As the instruction complained of related to a degree of crime inferior to that of which the defendant is convicted, this objection becomes immaterial." (Page 779. Citing The State v. Dickson, The State v. Potter, The State v. Rhea, and The State v. Yarborough.)

In the case of The State v. McCarty, 54 Kan. 52, 36 P. 338, no instruction upon the law of manslaughter in the second degree was asked or given, although the law relating to other degrees of manslaughter was stated. The court said:

"We agree with counsel that the court should correctly charge the jury as to all the law applicable to every state of facts fairly supported by evidence, and that the rule declared in The State v. Dickson, supra, ought not be extended to unreasonable limits. But where the jury under proper instructions have found a defendant guilty of every element of the superior offense, erroneous instructions or a total failure to instruct, with reference to an offense inferior in degree and including less criminality can not, logically, be said to have influenced the jury. The failure of the court can only be said to be prejudicial to the defendant on the theory that the jury failed to fully comprehend the definition of the superior degree, or misconstrued and misapplied the law to the facts. To indulge in such presumptions, even though we know that mistakes are made by juries and courts alike, is to overturn the whole theory of the administration of justice." (Page 58.)

In the case of The State v. Peak, 66 Kan. 701, 72 P. 237, the defendant was convicted of selling intoxicating liquors and keeping a nuisance contrary to the prohibitory law. The opinion reads:

"Another alleged error is that the court instructed the jury that under the information, if the evidence warranted, the defendant might be convicted of keeping and maintaining a clubroom. The defendant contends that the information was not drawn under the clubroom provision of the statute and contains no allegations upon which the defendant could be convicted of keeping or maintaining a clubroom. We do not believe this position is well taken. The facts charged in the information are sufficient to support a...