366 P.2d 294 | Kan. | 1961
The opinion of the court was delivered by
Defendant appeals from a conviction of murder in the second degree.
Highly summarized, the record shows the following:
At about 9:30 on the night of April 6, 1959, as one Linden M.
Competent local counsel was appointed for defendant and represented him throughout the trial. Among his defenses was that of alibi — his contention being that at the time of the killing he was either in a pool hall or restaurant in Kiowa.
The jury was instructed as to murder in the first degree, and also as to murder in the second degree under G. S. 1949, 21-402, which provides that every murder which shall be committed purposely and maliciously, but without deliberation and premeditation, shall be deemed murder in the second degree.
The jury returned a verdict of murder in the second degree.
Defendant filed a motion for a new trial on three grounds — (1) the court admitted illegal testimony; (2) newly discovered evidence, and (3) the verdict is contrary to the evidence.
The motion was overruled and defendant was sentenced to confinement for a period of thirty-five years (G. S. 1949, 21-403; G. S. 1949, 21-109).
Defendant — apparently pro se — filed a notice of appeal from the verdict, sentence, and the order denying the motion for a new trial, following which present counsel for defendant entered the case.
Five specifications of error are set out in the abstract, but upon oral argument of the appeal counsel stated to this court that he abandoned all except specification No. 2, which is that the court erred in instructing the jury as to murder in the second degree. He further stated that no error was being predicated on the contents of the instruction and conceded that it correctly states the law as
Ordinarily, of course, and particularly in homicide cases, questions pertaining to the giving of instructions have arisen where the court refused to instruct as to a lower degree. Here we have just the opposite situation.
The general rule is that a trial court must examine the evidence as a whole and then instruct upon such questions as the evidence naturally, reasonably and probably tends to prove, and it is under no duty to, and should not, instruct as to any degree of the offense which the evidence does not tend to prove. (State v. Hardisty, 121 Kan. 576, 580, 581, 249 Pac. 617; The State v. Roselli, 109 Kan. 33, 40, 198 Pac. 195.) Our statute, G. S. 1949, 62-1447, among other things, provides that a jury is to be instructed upon all matters of law which are necessary for their information in arriving at their verdict. In State v. Fouts, 169 Kan. 686, 692, 221 P. 2d 841, it was said that in prosecutions for homicide it is the imperative duty of the trial court to instruct the jury not only as to the offense charged— but as to all lesser offenses of which the accused might be found guilty under the information and upon the evidence adduced, and that such is the rule even though the court may deem the evidence supporting the lesser offense to be weak and inconclusive, and notwithstanding a request for such an instruction had not been made.
It is true that here the defendant was charged with the killing while in the perpetration of a robbery. It also is true there was evidence to the effect the cash register was “short” when the victim’s body was found some thirty minutes later — thus lending weight to the suspicion that defendant and his companions made off with the money, which, in turn, as contended by defendant, established that his guilt, if any, was that of murder in the first degree, and that no occasion arose for the giving of the instruction as to murder in the second degree.
On the other hand, the record does not establish that the killing was committed while a robbery was in progress. There was no
Giving the defendant the benefit of every doubt — as indeed the trial court did — the evidence was such that the jury was warranted in finding that the killing was done, not in the perpetration of a robbery, but that it was done purposely and maliciously, but without deliberation and premeditation (G. S. 1949, 21-402), in which event the court properly instructed as to murder in the second degree. Moreover, the record shows that no objection to the instruction was made — either to its contents or to the giving of it. On appeal it is conceded the instruction contained correct statements of law relating to murder in the second degree. The motion for a new trial did not mention instructions. The denial of the motion for a new trial as a specification of error has been abandoned.
Notwithstanding that in a technical sense it perhaps could be contended the question here presented is not open to appellate review, we nevertheless have considered the matter and our conclusion is the court did not err in instructing on murder in the second degree. The verdict is supported by the evidence and the judgment is affirmed.