State v. Diggs

Fontron, J.,

dissenting: I find myself in disagreement with the court’s opinion. Although I acknowledge that the decision in State v. Knoll, 72 Kan. 237, 83 Pac. 622, may provide a precedent for the majority’s holding, I am unable to accept the rationale of that decision. The view expressed by Chief Justice Johnston, in his able dissenting opinion in Knoll, strongly appeals to me as being grounded in reason and good, common sense.

I find no better words in which to phrase my sentiments than to quote from Judge Johnston’s logical and concise dissent:

“The maimer of the killing is an element of the offense, and is a question of fact for the determination of a jury. The jury did decide that the manner of the killing was both cruel and unusual, and a majority of the court approve of the finding that, it was cruel. If there was testimony fairly tending to show that the method of the killing was unusual, it was the duty of the court to submit the question to the jury, and its verdict should not be set aside. In this state homicides are uncommon, and it is not easy to define the usual manner in which unlawful killings are committed. In almost every case it must necessarily be a question for the jury to determine. . . .” (p. 244.)

There is evidence in the instant case of a brutal and unprovoked attack upon a peaceful old man of seventy-eight, who offered no resistance, by a quarrelsome tough who was twenty years younger than his victim. There is evidence that, although he used only his hands and fists, the aggressive bully continued to beat and flail the old gentleman about the head and body despite the latter’s repeated pleas to stop. There is evidence that so savage was the attack that its victim was knocked into a chair and sustained not only a ruptured esophagus, which caused his death, but also bruises and contusions about the head and body, badly blackened and swollen eyes and broken ribs.

Considering the disparity in age between the assailant and the assailed, the defendant’s attack upon the deceased would appear to be sufficiently unique in its ferocity, duration and manner of accomplishment to make it a jury question as to whether the killing was cruel or not, and whether it was usual or unusual.

In my opinion, the judgement of the lower court should be affirmed and I, therefore, respectfully dissent.