Opinion
No. 47,038
Filed May 29, 1974.
OPINION ON MOTION FOR REHEARING
CRIMINAL LAW — Opinion Modified and Corrected.
Appeal from Sedgwick district court, division No. 3; B. MACK BRYANT, judge. Original opinion modified and motion for rehearing denied. Filed May 29, 1974. (For original opinion see State v. Clark, 214 Kan. 293, 521 P.2d 298.)
John F. Jorgensen, of Dresie Jorgensen, of Wichita, argued the cause and was on the brief for the appellant.
Larry Kirby, deputy district attorney, argued the cause, and Vern Miller, attorney general, Keith Sanborn, district attorney, and Stephen M. Joseph, of counsel, of Wichita, were with him on the brief for the appellee.
The opinion of the court was delivered by
In the opinion filed April 6, 1974, remanding this case for a new trial, one of the reasons given for reversal was failure to instruct the jury on fourth degree manslaughter under K.S.A. 21-419 as being a lesser included offense of murder in the first degree. In assigning this as a ground for reversal this court was in error; the jury was instructed as to fourth degree manslaughter as defined by K.S.A. 21-419. Consequently, the opinion is modified by deleting all reference to failure to instruct on fourth degree manslaughter under K.S.A. 21-419, and Syllabus 7 is corrected to read as follows:
7. The evidence is examined in an action wherein the defendant was convicted of murder in the second degree and for reasons appearing in the opinion it is held the trial court erred (1) in failing to instruct on the lesser included offense of manslaughter in the second degree as defined in K.S.A. 21-411 and (2) in improperly instructing the jury as to the purposes for which a prior crime could be considered.
In other respects the opinion is confirmed and the motion for rehearing is overruled.