State v. Yargus

• Decision Date: 09 December 1922
• Docket Number: 24,189
• Citation: 112 Kan. 450,211 P. 121
• Parties: THE STATE OF KANSAS, Appellee, v. MAUDE YARGUS, alias MAUDE BARNES, Appellant
• Court: Kansas Supreme Court

211 P. 121

112 Kan. 450

THE STATE OF KANSAS, Appellee, v. MAUDE YARGUS, alias MAUDE BARNES, Appellant

No. 24,189

Supreme Court of Kansas

December 9, 1922

Decided July, 1922.

Appeal from Reno district court; WILLIAM G. FAIRCHILD, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Motion in Arrest of Judgment--Grounds Therefor. Under the Kansas statute only two grounds exist for a motion in arrest of judgment in a criminal case--lack of jurisdiction in the court over the offense charged and failure of the indictment or information to state facts sufficient to constitute a public offense.

2. SAME--Charge Murder in First Degree by Means of Poison--Finding--Guilty of Murder in Second Degree. A defendant who is convicted of an offense which is less than that charged, but which is necessarily included within it cannot obtain a reversal on the ground that the evidence showed him to be guilty of the greater offense if any, because the error in that respect is not prejudicial, inasmuch as it benefits instead of injuring him. For this reason one who is prosecuted upon a charge of murder by means of poison and found guilty of murder in the second degree cannot upon appeal effectively complain on the ground that murder committed by the administration of poison is necessarily of the first degree, even assuming that to be the case.

Carr Taylor, and John H. Connaughton, both of Hutchinson, for the appellant.

Richard J. Hopkins, attorney-general, Dennis Madden, assistant attorney-general, and William H. Burnett, county attorney, for the appellee.

OPINION

MASON, J.:

Maude Yargus was charged with committing murder in the first degree by means of poison. She was convicted of murder in the second degree, and appeals.

In her behalf it is contended that murder by the administration of poison is necessarily murder in the first degree and cannot constitute murder in the second degree; that the trial court erred in instructing the jury that the defendant might be found guilty of second degree murder; and that for these reasons a motion in arrest of judgment should have been sustained, or at all events a new trial should have been granted.

1. Only two grounds for a motion in arrest of judgment are recognized by our statute--a lack of jurisdiction in the court over the offense charged, and a failure of the facts stated to constitute a public offense. (Gen. Stat. 1915, § 8193.) The sufficiency of the information as one for murder in the first degree is not challenged, and it is obvious that neither statutory ground exists here. If the defendant is entitled to have the verdict set aside this can be done only by the granting of a new trial.

2. The two degrees of murder are thus defined:

"Every murder which shall be committed by means of poison or by lying in wait, or by any kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration of an attempt to perpetrate any arson, rape, robbery, burglary, or other felony, shall be deemed murder in the first degree." (Gen. Stat. 1915, § 3367.)

"Every murder which shall be committed purposely and maliciously, but without deliberation and premeditation, shall be deemed murder in the second degree." (Gen. Stat. 1915, § 3368.)

There is some difference of judicial opinion as to whether, under these or similar statutory provisions, the jury in a prosecution for murder by means of poison should be given the opportunity to return a verdict of murder in the second degree. The cases on the subject have been collected and classified in a note on the "Effect of statutory declaration that murder committed by certain means, or while engaged in commission of felony, shall be murder of the first degree, upon the right of jury to pass upon the degree." (12 L.R.A. N.S. 935.)

In a prosecution for murder in the first degree by the administration of chloroform, where the jury were told that in order to convict on that charge they must find that the poison was given with the intention of causing death, this court held that it was unnecessary to give an instruction concerning deliberation and premeditation, saying: "The act described, and in fact, any murder committed by means of poison, as well as by lying in wait, involves and presupposes the elements of malice, premeditation and deliberation, and hence it was needless for the court to state that they are prerequisites to a conviction." (The State v. Baldwin, 36 Kan. 1, 19, 12 P. 318.) That case was rightly decided if, under the facts presented, there was no room for believing the poison to have been given murderously but without deliberation or premeditation, even supposing such situation to be possible, as some courts have held (Lane v. The Commonwealth, 59 Pa. 371; The State v. Dowd, 19 Conn. 388; Eytinge v. Territory, 12 Ariz. 131, 100 P. 443), although the contrary view has been taken. (State v. Wells et al., 61 Iowa 629, 17 N.W. 90.) Some of the decisions bearing on the general subject are based upon the statutory requirement that the jury shall state in the verdict of conviction the degree of the offense, and some upon the theory that by the definition of murder by poison the elements of deliberation and premeditation are eliminated. Some also are affected by the use of the word "other" in the definition of first degree murder between the words "any" and "kind" in the clause "or by any kind of willful, deliberate and premeditated killing." In some states, although the trial court properly instructs that the evidence shows the defendant to be guilty of first degree murder, if guilty at all, the jury can nevertheless return a valid verdict of second degree murder. (Shaffner v. Commonwealth, 72 Pa. 60; Adams v. The State, 29 Ohio St. 412.)

Here no transcript of the evidence has been made, the reason assigned for this omission being the defendant's poverty. For present purposes it will be assumed that the evidence did not admit a finding that the defendant was guilty of murder by poison but without deliberation and premeditation, even if murder by that means can ever be accomplished without the existence of these elements. On that assumption we hold the error in submitting to the jury the issue of second degree murder not to have been prejudicial to the defendant. Verdicts of murder in the second degree have been set aside on appeal upon the ground that the defendant should have been found guilty of murder in the first degree or acquitted. ( Dresback v. The State, 38 Ohio St. 365; State of Iowa v. Bertoch, 112 Iowa 195, 83 N.W. 967.) And on the other hand it has been held that the defendant cannot effectively complain of a ruling which results in his being convicted of second instead of first degree murder. ( State v. Phinney, 13 Idaho 307, 89 P. 634; State v. Lindsey, 19 Nev. 47, 5 P. 822.)

In the first of the two cases just cited it was said:

"We therefore conclude that although the defendant was charged with the...