State v. Gibler

8 Citing cases

  1. State v. Adams

    242 Kan. 20 (Kan. 1987)   Cited 23 times
    In Adams, the court held in the circumstances of that case that under K.S.A. 21-3107(2)(d), the offense of DUI was a lesser included offense of involuntary manslaughter. 242 Kan. 20, Syl. ¶ 2.

    Two Kansas cases. State v. Gibler, 182 Kan. 578, Kan. 578, 322 P.2d 829, and State v. Way, 76 Kan. 928, 93 P. 159, fall under this category and are followed by the Court of Appeals in its decision." (Emphasis added.)

  2. State v. Yowell

    184 Kan. 352 (Kan. 1959)   Cited 17 times
    In Yowell, the defendant raised a jury instruction challenge on appeal based in part on the district court's instruction that the jury could convict him of manslaughter simply because he was driving without a valid license when a fatal traffic accident occurred.

    This, we may add, is so because there Custer was charged with driving an automobile on a public highway at an unlawful rate of speed, thus causing the death of another on the highway (the unlawful act being the direct cause of the death) whereas — as here — he was not only charged with three acts of that character but also charged with an additional act, driving after suspension and revocation of a driver's license, all four of which acts were alleged to have so caused his automobile to strike another vehicle on a public highway and result in the death of Betty J. Wise. In this connection we pause to note, that in three of our subsequent decisions ( State v. Spohr, 171 Kan. 129, 132, 230 P.2d 1013; State v. Champ, 172 Kan. 737, 242 P.2d 1070; State v. Gibler, 182 Kan. 578, 322 P.2d 829), involving prosecutions for manslaughter in the fourth degree, where the above stated rule of the Custer case is followed and quoted at length, it appears the only penal infractions in question involved acts having a direct or causal bearing on the collision resulting in death. It is still more interesting to note that of all the Kansas cases, listed in our statutory annotations and cited in Shepard's Citations, as involving criminal prosecutions under 21-420, since the Custer case ( State v. Pendleton, 144 Kan. 410, 61 P.2d 107; State v. Townsend, 146 Kan. 982, 73 P.2d 1124; State v. Gloyd, 148 Kan. 706, 84 P.2d 966; State v. Phelps, 151 Kan. 199, 97 P.2d 1105, and 153 Kan. 337, 110 P.2d 755; State v. Carte, 157 Kan. 139, 138 P.2d 429, and 157 Kan. 673, 143 P.2d 774; State v. Spohr, supra; State v. Champ, supra; State v. Goetz, 171 Kan. 703, 237 P.2d 246; State v. Dean, 179 Kan. 24, 292 P.2d 694; State v. Gibler, supra), not one is based on a charge or involves a claim that, in and

  3. State v. Arnold

    223 Kan. 715 (Kan. 1978)   Cited 29 times
    Holding simple battery not a lesser included offense of attempted rape under the elements test

    The lesser offense is not always included in the greater; its inclusion depends on the allegations in the accusatory pleading. Two Kansas cases, State v. Gibler, 182 Kan. 578, 322 P.2d 829 and State v. Way, 76 Kan. 928, 93 P. 159, fall under this category and are followed by the Court of Appeals in its decision. As we have stated, under present Kansas law under subparagraph ( d) all elements necessary to prove the lesser offense must be present and be required to establish the elements of the greater offense charged.

  4. State v. Jensen

    197 Kan. 427 (Kan. 1966)   Cited 26 times
    Holding that more must be shown than that defendant was driving while intoxicated to prove reckless murder

    However, in many other cases, this court has sustained convictions by a jury for manslaughter in the fourth degree where the acts from which the homicide resulted were almost identical to those here involved. See, State v. Pendleton, 144 Kan. 410, 61 P.2d 107; State v. Townsend, 146 Kan. 982, 73 P.2d 1124; State v. Gloyd, 148 Kan. 706, 84 P.2d 966 (reversed on other grounds); State v. Spohr, 171 Kan. 129, 230 P.2d 1013; State v. Champ, 172 Kan. 737, 242 P.2d 1070; State v. Dean, 179 Kan. 24, 292 P.2d 694; State v. Gibler, 182 Kan. 578, 322 P.2d 829, and State v. Yowell, 184 Kan. 352, 336 P.2d 841 (reversed on other grounds). Deeming it essential there be uniformity of criminal justice in the state and because of the grave penalties which a conviction of manslaughter in the first degree carries, we are of the opinion that the administration of criminal justice would best be served by re-examining our holding in State v. Goetz, supra.

  5. State v. McNichols

    188 Kan. 582 (Kan. 1961)   Cited 10 times
    Refusing to grant a defendant a new trial after jurors looked up the definition of “culpable” in dictionaries to understand the term “culpable negligence” because the jury found the defendant guilty under a theory that did require it to find him guilty of culpable negligence

    It is argued later cases had factors present other than a mere violation of a statute designed for the purpose of protecting human life and safety. (Citing, State v. Pendleton, 144 Kan. 410, 61 P.2d 107; State v. Gloyd, 148 Kan. 706, 84 P.2d 966; State v. Phelps, 153 Kan. 337, 110 P.2d 755; State v. Spohr, 171 Kan. 129, 230 P.2d 1013; State v. Gibler, 182 Kan. 578, 322 P.2d 829; and State v. Yowell, 184 Kan. 352, 336 P.2d 841.) The appellant argues the type of conduct which seems to be the correct basis for a manslaughter conviction is illustrated in State v. Townsend, 146 Kan. 982, 73 P.2d 1124, which involved driving at high speed under the influence of intoxicating liquor, and driving crosswise to the highway into the path of an oncoming vehicle.

  6. State v. Rorie

    252 N.C. 579 (N.C. 1960)   Cited 20 times
    In Rorie, the defendant was tried on an indictment charging him with murder using the statutorily authorized short-form indictment.

    Notwithstanding the provisions of the above statutes, when it is sought to fall back on the lesser offense of assault and battery or assault with a deadly weapon, in case the greater offense, murder or manslaughter, is not made out, the indictment for murder should be so drawn as necessarily to include an assault and battery or assault with a deadly weapon, or it should contain a separate count to that effect. Re McLeod, 23 Idaho 257, 128 P. 1106, 43 L.R.A. (N.S.) 813; Watson v. State, 116 Ga. 607, 43 S.E. 32, 21 L.R.A. (N.S.) 1; Scott v. State, 60 Miss. 268 (1882); Cates v. Com., 111 Va. 837, 69 S.E. 520 44 L.R.A. (N.S.) 1047; People v. Schleiman, 197 N.Y. 383, 90 N.E. 950; Bell v. State, 149 Miss. 745, 115 So. 896; S. v. Thomas, 65 N.J.L. 598, 48 A. 1007; Reynolds v. People, 83 Ill. 479, 25 Am. Rep. 410; S. v. Gibler, 182 Kan. 578, 322 P.2d 829; 27 Am. Jur., Indictments and Informations, section 194, page 738, et seq.; 42 C.J.S., Indictments and, Informations, section 289, page 1317, et seq.; Wharton's Criminal Law and Procedure, volume 4, section 1799, page 631. It is stated in 27 Am. Jur., section 194: "It is a well-established, general rule that when an indictment charges an offense which includes within it another, lesser offense, or one of a lower degree, the defendant, although acquitted of the higher offense, may be convicted of the lesser, or he may be convicted of the major offense without regard to the minor one.

  7. Olney v. State

    100 N.W.2d 838 (Neb. 1960)   Cited 10 times

    The general rule is that the unlawful operation of a motor vehicle is not necessarily an included offense in a prosecution for motor vehicle homicide. State v. Weise, 75 Idaho 404, 273 P.2d 97. See, also, State v. Gibler, 182 Kan. 578, 322 P.2d 829; People v. Gallagher, 164 Cal.App.2d 414, 330 P.2d 464. In this respect the statutes of this state provide: "Upon an indictment for an offense consisting of different degrees the jury may find the defendant not guilty of the degree charged, and guilty of any degree inferior thereto; and upon an indictment for any offense the jury may find the defendant not guilty of the offense but guilty of an attempt to commit the same, where such an attempt is an offense."

  8. State v. Arnold

    1 Kan. App. 2d 642 (Kan. Ct. App. 1977)   Cited 7 times

    (Syl. 1)        Later, in State v. Gibler, 182 Kan. 578, 322 P.2d 829, the court took the same approach. There defendant was tried on an information charging him with manslaughter in the fourth degree.