State v. Yowell

• Decision Date: 07 March 1959
• Docket Number: No. 41280,41280
• Citation: 336 P.2d 841,184 Kan. 352
• Parties: STATE of Kansas, Appellee, v. Ernest L. YOWELL, Appellant.
• Court: Kansas Supreme Court

Page 841

336 P.2d 841

184 Kan. 352

STATE of Kansas, Appellee, v. Ernest L. YOWELL, Appellant.

No. 41280.

Supreme Court of Kansas.

March 7, 1959.

Syllabus by the Court

1. Complaints relating to formal defects in an information are waived in a criminal action by failure to object thereto in some appropriate manner in the preliminary stages of the proceeding, prior to the impaneling of a jury to try the cause.

2. In a prosecution for manslaughter as defined in G.S.1949, 21-420, it is proper to include allegations setting forth the facts, pertaining to penal infractions of the law regulating traffic on the highway, relied on as the cause of death.

3. If death results from unlawful conduct amounting to misdemeanor denounced by statute for the purpose of protecting human life and safety, and the death would not have resulted except for the unlawful conduct, the killing would be manslaughter at common law. (Following State v. Custer, 129 Kan. 381, 282 P. 1071, 67 A.L.R. 909; and other decisions cited in this opinion.)

4. The established rule of law, stated in paragraph 3 of this syllabus, contemplates that, though the act, made unlawful by statute, is an act merely malum prohibitum and is ordinarily insufficient, still, when such an act is accompanied by negligence or further wrong, so as to be, in its nature, dangerous, or so as to manifest a reckless disregard for the safety of others, then it may be sufficient to supply the wrongful intent essential to criminal homicide, and, when such act results in the death of another, may constitute manslaughter as defined in 21-420, supra.

5. In a prosecution for manslaughter in the fourth degree the evidence may be such that the court is required to give an instruction upon negligent homicide under G.S.1949, 8-529.

6. The record in a criminal prosecution examined and held that under the facts, conditions and circumstances, and for the reasons, set forth at length in the opinion, the trial court erred in failing to amplify instruction 3 and in refusing to instruct on the offense of negligent homicide.

F. Russell Shultz, Wichita, argued the cause and was on the briefs for appellant.

Don Matlack, Deputy County Atty., Wichita, argued the cause, and John Anderson, Jr., Atty. Gen., Robert E. Hoffman, Asst. Atty. Gen., and Keith Sanborn, County Atty., Wichita, were with him on the briefs, for appellee.

PARKER, Chief Justice.

The defendant, Ernest L. Yowell, was arrested, tried, convicted and sentenced on a charge of manslaughter in the fourth degree in violation of G.S.1949, 21-420. He appeals from the overruling of his motion for a new trial and from the judgment.

The issues presented on appeal are of such nature that, except those essential for a proper understanding of what the case is about, the pictorial facts are of little consequence and can be highly summarized. Facts which can be classified as undisputed, under the evidence of record will first be stated.

On the morning of January 4, 1958, at about 7:30 a. m., defendant, whose license to drive a motor vehicle upon the public highways had been suspended pursuant to the laws of this state, was driving his automobile in an easterly direction on U. S. Highway 54 on the outskirts, but within the legal limits of the city of Wichita. The highway at that point was unposted and daytime speed limit was limited to seventy miles per hour. Mrs. Betty J. Wise, a resident of Clearwater, was ahead of defendant and driving her automobile east on the same highway, en route to Wichita. Defendant overtook Mrs. Wise and attempted to pass her automobile. In making this attempt he struck the rear end of the Wise car, just to the left of the center of such vehicle. The force of the collision caused hoods, fenders, lights and other portions of the two vehicles to fly through the air and from the point of impact the Wise car traveled one hundred sixty feet, passed over the south curb of the highway and struck a light pole, while the defendant's car traveled two hundred and ninety-five feet, notwithstanding the right front fender and bumper thereof had been driven back into the right front wheel, locking it so it could no longer turn. As a result of the collision Mrs. Wise was thrown from her car and sustained a brain concussion which resulted in her immediate death.

Nothing would be gained and we are not disposed to burden our reports with details of the evidence which we are required to classify as in dispute, because of defendant having testified as a witness in his own behalf. It suffices to say we have carefully reviewed the record and find ample substantial competent evidence on which the jury in reaching its verdict would have been warranted in finding that at the time of the accident the defendant was driving under the influence of intoxicating liquor, driving at a speed exceeding the lawful speed limit at the time and place in question, and driving at a rate of speed that was greater than reasonable and prudent under the circumstances. In this connection it is to be noted that in the information the commission of all three of such statutory delinquencies were assigned as grounds for charging defendant was operating his automobile in a culpably negligent manner and so caused his automobile to strike the vehicle driven by Betty J. Wise in such manner as to thereby result in her death.

Appellant first contends the court erred in refusing to strike certain allegations from the information. It may be said these claimed defects ran only to the form in which the various elements of the offense are stated and that, so far as the abstract discloses, such objections to the information, which had not been previously attacked, were presented and argued to the trial court for the first time at the close of the state's evidence. This court has long been committed to the rule, supported by well-recognized legal treatises (27 Am.Jur., Indictments and Informations, 731, 732, § 187; 4 Wharton's Criminal Law and Procedure, 752, § 1881; 2 Wharton's Criminal Law and Procedure [10th Ed.] 1784, § 1324; Kelly's Criminal Law & Procedure [4th Ed.] 175, § 217), that complaints relating to formal defects in an information are waived in a criminal action by not objecting thereto in some appropriate manner in the preliminary stages of the proceeding, prior to the time of impaneling a jury to try the cause. See, e. g., Rice v. State, 3 Kan. 141, 167; State v. Ash, 44 Kan. 84, 24 P. 72; State v. Hupp, 154 Kan. 410, 118 P.2d 579.

In leaving this point it can be stated that even if questions raised with respect thereto were to be considered on the basis of merit their decision would result in no benefit to appellant. It has been determined that in a prosecution for manslaughter in the fourth degree it is proper to include in the information allegations setting forth the facts, relating to penal infractions of the law regulating traffic on the highway, relied on as the proximate cause of the death (State v. Bowser, 124 Kan. 556, 558, 261 P. 846; State v. Spohr, 171 Kan. 129, 130, 230 P.2d 1013).

At the close of the trial the court instructed the jury in writing. Only one of the instructions is involved on appeal. It is instruction No. 3 which reads:

'The law of Kansas provides that the killing of a human being resulting from unlawful conduct such as driving after suspension and revocation of a driver's license, or driving while under the influence of intoxicating liquor, or driving beyond the lawful speed limit, or driving at a speed greater than was reasonable and prudent under the circumstances, shall be deemed manslaughter in the fourth degree, provided that the death would not have occurred except for the unlawful conduct. It is for the jury to determine whether the defendant was engaging in any unlawful conduct and whether the death would not have occurred except for such unlawful conduct.

'The law also provides that the killing of a human being resulting from conduct amounting to recklessness or a disregard of or indifference to life or the safety of others, although no harm may have been intended, shall be deemed manslaughter in the fourth degree provided that death would not have resulted except for such conduct. It is for the jury to determine whether the defendant was engaging in any such conduct and whether the death would not have occurred except for such conduct.'

Appellant objected to the foregoing instruction before it was submitted to the jury. Specifically the grounds upon which he based his objections were raised by a motion to strike from such instruction (1) the allegations regarding suspension and revocation of a driver's license; (2) the allegations concerning the statutory speed limit, inasmuch as there was no evidence by which the jury could find he had exceeded such speed limit; and (3) the allegations concerning speed greater than was reasonable and prudent under the circumstances for the reason there was no evidence of speed hazard or circumstances.

Heretofore we have stated there was ample substantial competent evidence to warrant the jury in reaching its verdict upon objections, herein last above identified as (2) and (3), relating to matters of speed. It follows such objections lack merit and cannot be upheld. Thus, since appellant made no objection to the last paragraph of instruction No. 3 and contentions advanced with respect thereto by way of afterthought in his brief are not here subject to review, it appears appellate review of such instruction is limited to portions thereof having to do 'with unlawful conduct such as driving after suspension and revocation of a driver's license.' This, of course, includes consideration of the last sentence of the first paragraph of the instruction as quoted.

In approaching the interesting and, we may add, the highly perplexing and important over-all question, to which we have just referred, we are constrained to state that appellant cites no criminal cases whatsoever in...