State v. Curtis

Citations

• 93 Kan. 743
• 145 P. 858
• 1915 Kan. LEXIS 18

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>Homicide — Instructions on Lower Degrees of Offense Charged ■ — -Failure to Bequest — No Waiver — Province of Jury. In a trial for murder, aside from proof of a few collateral circumstances, the evidence consisted of testimony of a previous confession of the defendant and the testimony of the sole eyewitness of the shooting. The information in one count charged murder in the first degree perpetrated in an attempt to rob, and also murder in the first degree independent of an attempt to rob. .Aside from the confession the evidence was insufficient to sustain the charge of murder in an attempt to rob. The defendant testified at the trial that the confession was untrue and gave testimony that' he had nothing to do with the crime and knew nothing about it, and gave testimony tending to prove that the confession had not been freely or voluntarily made. The prosecution offered testimony tending to show that it had been so made. This conflict in evidence was submitted to the jury with instructions not challenged here and the alleged confession was read in evidence. The jury were instructed “that under the evidence and the information in this case . . . the defendant is either guilty of murder in the first degree or he is not guilty.” It is held, (1) Upon the charge of murder in the first degree, apart from the allegation of an attempt to rob, the jury should have been instructed upon the lesser degrees if there was any evidence, although slight, tending to show any lesser offense included in the principal charge. (2) The evidence, apart from the confession, was sufficient to require instructions upon the lesser degrees. (3) Upon the confession alone, considered as an entirety, and entirely true, instructions upon the lesser degrees were unnecessary. (4) It was the province of the jury to believe or disbelieve all or any part of the evidence of the confession, and to accept as proof of guilt, or to reject, the confession or any part of it. (5