State v. WilsonState v. Wilson
- Reporters:
- , ,
- Before:
- Owsley
The opinion of the court was delivered by
Owsley, J.;
Defendant appeals from conviction of murder in the second degree in violation of
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
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. (
Defendant was found guilty of second degree murder. On appeal he contends the trial court’s instruction defining malice was not sufficient tо enable the jury to distinguish between the crime of second degree murder and voluntary manslaughter.
Definition 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.
“(2) The defendant is charged with the crime of murder in the second degrеe. The defendant pleads not guilty.
“To establish this charge each of the following claims must be proved:
“1. That the defendant killed Cleotis Meeks;
“2. That such killing was done maliciously [willfully without just cause or excuse]; and
“3. That this act was done on or about the 29th day of October, 1972, in Leavenworth County, Kansas.”
We find no merit in defendant’s contention that the instructions did not adequately distinguish between second degree murder and voluntary manslаughter.
Defendant next contends he was entitled to’ an instruction on involuntary manslaughter. Involuntary manslaughter is defined in
‘Involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner. As used in this section, an ‘unlawful act’ is any act which is prohibited by a statute of the United States or the state of Kansas or an ordinance of any city within the state which statute or ordinance is enacted for the protection of human life or safety.”
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 evidencе on the issue of intent to kill. The only theory of defense which defendant put forth was denial of the killing. In support of his request for an instruction on involuntary manslaughter, defendant cites prior casеs in which we have reversed for lack of such an instruction when the charge was second degree murder. (State v. Weyer, 210 Kan. 721, 504 P. 2d 178; State v. Warbritton, 211 Kan. 506, 506 P. 2d 1152.) Those cases are not applicable to the facts in this situation. They turned on the evidence of defendant’s intent at the time of the killing, and lack of intent to kill was the only defense.
Defendant’s third point on appeal contends the trial court еrred in admitting into evidence defendant’s clothing worn at the time of the killing. The articles of clothing had been chemically tested for blood and the chemist testified the tests were inconclusivе on the question of whether or not any human blood was present. Defendant contends the evidence was irrelevant and its admission served only to arouse the passion, prejudice аnd sympathy of the jury. Defendant is correct in his assessment that the evidence is irrelevant; but we fail to see how the viewing of clothing, with the accompanying testimony of the chemist that there wаs little or no blood on it, aroused the passions of the jury. Admissibility of a physical object is within the sound discretion of the court and is to be determined by the trial judge on the basis of its relevance аnd connection with the accused and with the crime charged. (State v. Robinson, 203 Kan. 304, 454 P. 2d 527.) Admission of the clothing in this case did not adversely affect defendant’s fundamental right to a fair and impartial trial and, therefore, was not an abuse of discretion constituting reversible error.
Defendant’s final point on appeal contends it was error to allow into evidence Zumalt’s prison records through testimоny of Officer Herman Vogel. The defense called Zumalt as its witness and on direct examination elicited that he was serving a twenty-five year sentence for attempted murder and had five or six prior felony convictions, including two convictions for robbery. The defense, no doubt, intended to impress the jury with the truthfulness of the witness by these candid admissions of past convictions of crimes of
Officer Vogel admitted he had no personal knowledge of the disciplinary incidents to which he testified, but relied upon the records before him. There was no proper foundation laid for admission of those records under the business records exception to the hearsay rule. (Jay-Ox, Inc., v. Square Deal Junk Co., Inc., 208 Kan. 856, 494 P. 2d 1103.) Since they were not properly introduced into evidence as business records they are written hearsay and cannot be used to support the hearsay testimony of Officer Vogel. The admission of his hearsay based upon the written hearsay is error, but in light of the purpose of the testimony, impeachment, it is harmless error. The jury had before it Zumalt’s admissions of past convictions for crimes involving moral turpitude. Vogel’s testimony was directed to the same issue. Only whеre trial error adversely affects some substantial right of a party does it constitute prejudicial error. (State v. Earsery, 199 Kan. 208, 428 P. 2d 794; State v. Cruitt, 200 Kan. 372, 436 P. 2d 870; State v. Armstrong, 207 Kan. 681, 486 P. 2d 1322.) Under these circumstances, we find no prejudice to defendant’s substantive rights and no reason for reversing this conviction.
Judgment of the trial court is affirmed.