Source or Prior Law:

21-407, 21-410, 21-411, 21-412, 21-413, 21-414, 21-415, 21-418, 21-419, 21-420.

Law Review and Bar Journal References:

"Survey of Kansas Law: Criminal Procedure," Keith G. Meyer, 27 K.L.R. 391, 439 (1979).

"Criminal Law: The Kansas Approach to the Battered Woman's Use of Self-Defense [State v. Hundley, 236 Kan. 461, 693 P.2d 475 (1985)]," Shelley A. Ryan, 25 W.L.J. 174, 176, 178 (1985).

"Corporate Criminal Liability for Injuries and Death," Patrick Hamilton, 40 K.L.R. 1091, 1105, 1106 (1992).

"Solidifying the Use of Juvenile Proceedings as Sentence Enhancement and Clarifying Second-Degree Murder," Kay Redeker, 37 W.L.J. 483 (1998).

"Criminalizing the Intentional or Reckless Exposure to HIV: A Wake-Up Call to Kansas," Amy M. Decker, 46 K.L.R. 305 (1998).

CASE ANNOTATIONS

1. Conviction hereunder; no error in admission of evidence, submission of case or in instructions. State v. Betts, 214 Kan. 271, 274, 519 P.2d 655.

2. Conviction of second degree murder; contention of entitlement to instruction hereunder not upheld. State v. Wilson, 215 Kan. 437, 439, 524 P.2d 224.

3. Failure to instruct on involuntary manslaughter in prosecution for murder error. State v. Childers, 217 Kan. 410, 415, 416, 536 P.2d 1349.

4. Failure to give instruction hereunder in prosecution under K.S.A. 21-3402 error. State v. Clark, 218 Kan. 18, 21, 542 P.2d 291.

5. Applied; prosecution for second degree murder; instruction on manslaughter proper; erroneous instruction given. State v. Gregory, 218 Kan. 180, 182, 183, 542 P.2d 1051.

6. Failure to instruct hereunder in prosecution for second degree murder reversible error. State v. Seelke, 221 Kan. 672, 675, 561 P.2d 869.

7. Conviction of second degree murder; court did not err in refusing to instruct hereunder. State v. Burrow & Dohlmar, 221 Kan. 745, 749, 561 P.2d 864.

8. Court did not err in failing to instruct hereunder in prosecution for first degree murder; rule stated. State v. Franklin, 221 Kan. 739, 743, 561 P.2d 860.

9. Conviction hereunder; evidence sufficient to support inference of guilt. State v. Humbolt, 1 Kan. App. 2d 137, 562 P.2d 123.

10. Instruction hereunder and under K.S.A. 21-3402; conviction of second degree murder affirmed. State v. Coop, 223 Kan. 302, 310, 573 P.2d 1017.

11. Prosecution for murder; evidence did not require instructions on lesser offenses of manslaughter; conviction of second degree murder affirmed. State v. Cates, 223 Kan. 724, 728, 576 P.2d 657.

12. Section construed with K.S.A. 21-3405; death caused by wanton conduct; K.S.A. 21-3405 controlled. State v. Makin, 223 Kan. 743, 744, 747, 748, 576 P.2d 666.

13. Mentioned; vehicular homicide held to be lesser included offense of this section. State v. Choens, 224 Kan. 402, 580 P.2d 1298.

14. Prosecution for second degree murder; instructions on involuntary manslaughter insufficient; conviction reversed. State v. Farley, 225 Kan. 127, 134, 587 P.2d 337.

15. Conviction hereunder reversed; erroneous admission of evidence obtained from warrantless search. State v. Hanes, 3 Kan. App. 2d 125, 590 P.2d 597.

16. Conviction hereunder affirmed; instruction for lesser included offense not inaccurate or misleading. State v. Satterfield, 3 Kan. App. 2d 212, 213, 592 P.2d 135.

17. Physician-patient privilege not applicable in felony cases; court properly admitted blood alcohol test; conviction affirmed. State v. Parson, 226 Kan. 491, 492, 601 P.2d 680.

18. Conviction of involuntary manslaughter affirmed. State v. Knoxsah, 229 Kan. 36, 622 P.2d 140.

19. Where defendant pushed plunger on needle in deceased's arm and pulled gun trigger ultimately resulting in death, defendant properly convicted of first degree murder. State v. Cobb, 229 Kan. 522, 525, 625 P.2d 1133.

20. Failure to instruct on excessive use of force in self-defense held erroneous. State v. Warren, 5 Kan. App. 2d 754, 757, 624 P.2d 476.

21. Information alleging reckless driving sufficiently states crime; "reckless" means "wanton." Henderson v. Schenk, 6 Kan. App. 2d 562, 564, 631 P.2d 246 (1981).

22. Discussed; elements of involuntary manslaughter cited. State v. Williams, 6 Kan. App. 2d 833, 837, 635 P.2d 1274 (1981).

23. No error in refusing to instruct on a lesser included offense when not supported by evidence. State v. Staab, 230 Kan. 329, 339, 635 P.2d 257 (1981).

24. Where evidence in murder trial not sufficient to support charge hereunder, no instruction on involuntary manslaughter necessary. State v. Crispin, 234 Kan. 104, 109, 110, 671 P.2d 502 (1983).

25. State cannot appeal dismissal of some counts of multiple count complaint, information or indictment while other counts still pending. State v. Freeman, 234 Kan. 278, 279, 670 P.2d 1365 (1983).

26. Scope of review under K.S.A. 21-4618 limited to competent evidence of using firearm in crime; intentional use need not be shown. State v. Robinson, 10 Kan. App. 2d 135, 136, 694 P.2d 482 (1985).

27. Trial court erred in self-defense instruction by using PIK term "immediate" rather than statutory "imminent." State v. Hundley, 236 Kan. 461, 464, 469, 693 P.2d 475 (1985).

28. While manslaughter lesser included offense of first-degree murder, child abuse does not merge into felony murder charge. State v. Brown, 236 Kan. 800, 801, 803, 696 P.2d 954 (1985).

29. Evidence of wantonness presented at preliminary hearing (K.S.A. 22-2902); wantonness question of fact for jury; failure to bind over error. State v. Burrell, 237 Kan. 303, 306, 308, 699 P.2d 499 (1985).

30. Noted; vehicular homicide (K.S.A. 21-3405), DUI (K.S.A. 8-1567) convictions; audio/visual recording of proceedings, MADD and SADD buttons in courtroom, restitution sentence discussed. State v. McNaught, 238 Kan. 567, 713 P.2d 457 (1986).

31. Cited; information omitting one or more essential elements of crime charged examined. State v. Wilson, 240 Kan. 606, 607, 731 P.2d 306 (1987).

32. Aggravated vehicular homicide (K.S.A. 21-3405a) as concurrent and controlling involuntary manslaughter examined. State v. Goodnow, 12 Kan. App. 2d 294, 740 P.2d 113 (1987).

33. DUI (K.S.A. 8-1567) as lesser included offense, wantonness, abuse in sentencing examined. State v. Adams, 242 Kan. 20, 26, 27, 744 P.2d 833 (1987).

34. Cited; when court has affirmative duty to instruct on lesser included offense (K.S.A. 21-3107) examined. State v. Hill, 242 Kan. 68, 73, 744 P.2d 1228 (1987).

35. Cited; when court has affirmative duty to instruct on lesser included offenses (K.S.A. 21-3107) examined. State v. Cummings, 242 Kan. 84, 91, 744 P.2d 858 (1987).

36. Instruction on elements of involuntary manslaughter failure to instruct on no duty to retreat from attack examined. State v. Scobee, 242 Kan. 421, 748 P.2d 862 (1988).

37. Cited; viable fetus as not a "human being" within meaning of aggravated vehicular homicide statute (K.S.A. 21-3405a) determined. State v. Trudell, 243 Kan. 29, 32, 755 P.2d 511 (1988).

38. Use of force to protect one's dwelling (K.S.A. 21-3212) or property (K.S.A. 21-3213) as not violating suspect's 4 th Amendment rights examined. State v. Clothier, 243 Kan. 81, 83, 753 P.2d 1267 (1988).

39. Cited; at second-degree murder (K.S.A. 21-3402) trial, instructions on voluntary manslaughter (K.S.A. 21-3403) and self-defense (K.S.A. 21-3211), but not involuntary manslaughter examined. State v. Griblin, 12 Kan. App. 2d 677, 753 P.2d 843 (1988).

40. Cited; two-pronged test to determine whether lesser crime is lesser included offense (K.S.A. 21-3107(2)(d)) examined. State v. Fike, 243 Kan. 365, 368, 757 P.2d 724 (1988).

41. Gruesome photographs; rebuttal evidence; inapplicability of felony murder doctrine with child abuse resulting in death examined. State v. Prouse, 244 Kan. 292, 294, 767 P.2d 1308 (1989).

42. Prosecution as adult, doctrine of self-defense, instruction on lesser included offense, controlling sentence examined. State v. Meyers, 245 Kan. 471, 781 P.2d 700 (1989).

43. When instruction necessary on involuntary manslaughter as lesser included offense of first degree murder examined. State v. Burnison, 247 Kan. 19, 23, 795 P.2d 32 (1990).

44. Evidence needed to justify instruction on voluntary manslaughter in murder trial examined. State v. Hamons, 248 Kan. 51, 63, 805 P.2d 6 (1991).

45. Felony-murder as not supported by underlying felony of aggravated assault examined. State v. Leonard, 248 Kan. 427, 428, 807 P.2d 81 (1991).

46. Evidence required for instruction on involuntary manslaughter as lesser offense of attempted first-degree murder examined. State v. Dixon, 248 Kan. 776, 785, 811 P.2d 1153 (1991).

47. Cited in reviewing duty of trial court to instruct on lesser included offenses. State v. Wilburn, 249 Kan. 678, 687, 822 P.2d 609 (1991).

48. Where defendant not entitled to self-defense instruction, no instruction required on involuntary manslaughter based on self-defense. State v. Tyler, 251 Kan. 616, 627, 840 P.2d 413 (1992).

49. Exclusion of testimony of defendant's expert witness resulting in absence of instruction on lesser included offense held error. State v. Humphrey, 252 Kan. 6, 22, 845 P.2d 592 (1992).

50. What circumstances justify refusal to instruct on lesser included offenses of premeditated murder examined. State v. Deavers, 252 Kan. 149, 154, 843 P.2d 695 (1992).

51. Mandatory prison sentence required by K.S.A. 21-4618 not set aside unless it is obviously unfair and shocks the court's conscience. State v. Cramer, 17 Kan. App. 2d 623, 635, 841 P.2d 1111 (1992).

52. Involuntary manslaughter lesser included offense of second-degree murder; evidence supported that the murder was committed during course of felony. State v. Tran, 252 Kan. 494, 507, 847 P.2d 680 (1993).

53. Involuntary manslaughter instruction not required because defendant was aggressor. Rational factfinder could not have found that defendant performed lawful act in unlawful manner. State v. Rutter, 252 Kan. 739, 752, 850 P.2d 899 (1993).

54. Refusal of court to instruct on vehicular homicide as lesser included offense of second-degree murder examined. State v. Stone, 253 Kan. 105, 112, 853 P.2d 662 (1993).

55. Cited in holding court lacked jurisdiction to convict father of rape of 15 year-old daughter where father also convicted of aggravated kidnapping. Carmichael v. State, 18 Kan. App. 2d 435, 442, 856 P.2d 934 (1993).

56. Crime of attempted involuntary manslaughter not recognized in Kansas. State v. Shannon, 258 Kan. 425, 427, 905 P.2d 649 (1995).

57. No error in trial court's refusal to instruct on involuntary manslaughter as a lesser included offense of second-degree murder. State v. Cheeks, 258 Kan. 581, 589, 591, 908 P.2d 175 (1995).

58. Proof of a specific intent not required; specific intent distinguished from general intent. State v. Esher, 22 Kan. App. 2d 779, 783, 922 P.2d 1123 (1996).

59. Refusal of trial court to instruct jury on involuntary manslaughter in second-degree murder case upheld. State v. Pope, 23 Kan. App. 2d 69, 77, 927 P.2d 503 (1996).

60. Depraved heart second-degree murder (K.S.A. 21-3402(b)) adequately distinguishable from reckless involuntary manslaughter (K.S.A. 21-3404) by requiring a higher degree of recklessness; therefor not void for vagueness. State v. Robinson, 261 Kan. 865, 870, 881, 934 P.2d 38 (1997).

61. Trial court's failure to give lesser included offense jury instruction for involuntary manslaughter upheld. State v. Mitchell, 23 Kan. App. 2d 413, 416, 932 P.2d 1012 (1997).

62. Insufficient evidence that killing unintentional or reckless; involuntary manslaughter instruction not required. State v. Jackson, 262 Kan. 119, 124, 936 P.2d 761 (1997).

63. Merger doctrine not applicable to involuntary manslaughter under (b); battery is misdemeanor enacted for protection of human life or safety. State v. Ullard, 24 Kan. App. 2d 249, 943 P.2d 947 (1997).

64. Sentence vacated where defendant sentenced for offense committed before effective date of amendments to section's penalty provisions. State v. Wright, 24 Kan. App. 2d 558, 566, 948 P.2d 667 (1997).

65. Municipal convictions may be used under special criminal history provision of K.S.A. 21-4711(c). State v. Briggs, 24 Kan. App. 2d 621, 623, 629, 950 P.2d 273 (1997).

66. Contributory negligence is not a defense to vehicular homicide but a circumstance to be considered. State v. Chastain, 265 Kan. 16, 24, 960 P.2d 756 (1998).

67. Claim of prosecutorial misconduct not sustained. State v. Kraus, 271 Kan. 810, 26 P.3d 636 (2001).

68. Defendant, an epileptic with record of seven previous motor vehicle accidents, had realization of imminence of danger caused by his driving; this realization plus his driving sufficient to support reckless conduct. State v. Jenkins, 272 Kan. 1366, 39 P.3d 47 (2002).

69. Completed homicide has no nonhomicidal lesser included offenses. State v. Maxfield, 30 Kan. App. 2d 873, 54 P.3d 500 (2002).

70. Court sentencing defendant for involuntary manslaughter not required to certify him as a violent offender. State v. Lazos, 32 Kan. App. 2d 680, 87 P.3d 345 (2004).

71. Evidence of 9.7 miles of erratic driving plus admission of drowsiness sufficient to support conviction of involuntary manslaughter. State v. Hill, 33 Kan. App. 2d 907, 111 P.3d 178 (2005).

72. Under K.S.A. 21-3404(c) state must prove defendant's behavior was proximate cause of victim's death. State v. Scott, 285 Kan. 366, 372, 171 P.3d 639 (2007).

73. Cited in discussion of availability of imperfect self-defense. State v. Kirkpatrick, 286 Kan. 329, 339, 184 P.3d 247 (2008).

74. Cited in case challenging failure to instruct on lesser included homicides and robbery; no error found. State v. Reid, 286 Kan. 494, 522, 186 P.3d 713 (2008).

75. Cited; no error in premeditated first-degree murder case in failing to instruct on lesser included offenses. State v. Jones, 287 Kan. 559, 572, 197 P.3d 815 (2008).

76. Cited; no error in premeditated first degree murder case in denying jury instructions on lesser included offenses. State v. Henson, 287 Kan. 574, 587, 197 P.3d 456 (2008).

77. Conviction hereunder upheld; no error in failure to give a requested lesser offense instruction. State v. Hoffman, 288 Kan. 100, 200 P.3d 1254 (2009).

78. Refusal to instruct on lesser included offense of involuntary manslaughter upheld on appeal. State v. Houston, 289 Kan. 252, 213 P.3d 728 (2009).

79. No evidence found to support an involuntary manslaughter instruction through the lawful act of self-defense. State v. Pennington, 43 Kan. App. 2d 446, 227 P.3d 978 (2010).