(dissenting): The opinion in this case, written to express as accurately as possible the views of the majority of the court, does not represent my personal views. The reasons for my dissent will be stated- '
Reversal of the lower court leaves the appellee under three sentences for one offense. I do not believe that she can justly be held responsible — under the facts shown by the record — for such a result or that the trial court exceeded its power in taking prompt action to correct what it rightly regarded as a serious error.
The issues here touch fundamental questions. Adequate treatment would require much more lengthy discussion and review of authorities than will here be indulged. I shall content myself with setting out the principal propositions involved, as I see them, with brief supporting citations. Clarity — and I hope brevity- — may be promoted by first stating these propositions, topically.
*1461. The information showed clearly on its face that only one offense had been committed. The fact that three persons were killed — instantly killed — by the collision did not make the defendant chargeable with three separate offenses or acts of “culpable negligence,” which is the gravamen of the offense under the penal statute solely relied upon.
2. Arraignment and plea on the first count constituted jeopardy, available as a bar to the second and third counts.
3. All the facts showing such jeopardy being an integral part of the very case being tried, it was the duty of the court itself, even without plea in bar, to quash the second and third counts. Indeed, it may well be doubted — although I shall not here discuss that question — whether under such circumstances the court had jurisdiction'to proceed with the trial as to the second and third counts.
4. Under all the facts and circumstances shown by the record it cannot fairly be said that the defendant deliberately waived her defense of prior jeopardy.
5. If the sentences on the second and third counts were void, the court unquestionably had the power to set them aside. And whether void or merely voidable, the rule of law hereinafter stated in paragraph 7 with reference to power of the court to modify the sentence, is applicable.
6. Even if the illogical view be adopted that the defendant was guilty of three offenses, three acts of “culpable negligence” because three persons were killed in the accident, the rule stated- in paragraph 7 is still applicable.
7. On the question of the power of the court to modify, within the term, a sentence which has already gone into effect, distinction is made between modifications which increase the punishment and those which decrease it. Under the better-reasoned decisions — in my opinion — and perhaps the weight of authority, the rule is that the court does not have power to increase the punishment but does have power to decrease it.
8. On the facts there involved, the decision in Parks v. Armine, relied upon in the majority opinion, is in line with the rule just stated. But it is not controlling here against appellee’s contention because in that case we were not dealing with a new sentence which mitigated the punishment but with an attempt to increase the term of a sentence which the defendant had begun to serve.
To retrace:
*1471. The information clearly disclosed only one offense committed. From the brief submitted by the state we take the following statement:
“The three people who died by reason of the accident were killed instantly by reason of the contact of the two automobiles involved in the accident. There was only one accident which caused the deaths, as hereinbefore stated, and the three counts as contained in the information in which the defendant was charged with manslaughter in each count grew out of the one collision.” (Italics supplied.)
It must be conceded that there is conflict on the question of whether, when more than one person is killed by a single act, there is more than one offense. However, upon critical examination of the facts involved in the myriad of cases touching the question the apparent conflict in large part vanishes. I shall not extend this dissent by exhaustive analysis of cases. Clearly those cases where more than one blow was struck, more than one shot fired, more than one separate and distinct wrongful act committed, have no application here. The “culpable negligence” that resulted in the death of one of the three persons killed was precisely the same “culpable negligence” that killed the other two. The state does not contend otherwise. The three counts were identical, except for the name of the person killed.
Applying every intelligent test which I have anywhere found laid down to determine whether more than one offense was committed I can reach no conclusion except that one offense, and one only, was charged.
One test was enunciated by the United States Circuit Court of Appeals in Curtis v. U. S., 67 F. 2d 943. In paragraph 12 of the headnote it is said that a “test of identity of offenses, ás respects pleas of autrefois acquit is whether same evidence is required to sustain them.” In the instant case precisely the same evidence would be required on all three counts to sustain the charge of culpable negligence. It is not contended otherwise.
Many courts have applied the test of whether the facts and circumstances indicate a single or a multiple intent. Such a test at once distinguishes such cases as those suggested in the state’s brief in which a man deliberately shoots a gun into a crowd, or where he poisons a drinking-water well. In such cases more than one offense might be charged because the defendant would be presumed to have intended the natural result of his act — the killing of more than one *148person. It would be a case of “multiple intent.” We have no such situation here.
In the well-considered case of State v. Wheelock (1933), 216 Iowa 1428, 250 N. W. 617, this test of “singular” or “plural” intent was ably discussed. The case was “on all fours” with the case at bar. Three persons were killed in an automobile collision through the negligence of the defendant. Many cases were carefully analyzed in the opinion. The conclusions were summarized as follows:
“Our opinion herein shall go no farther than to determine whether an involuntary manslaughter of two or more persons attributable to the single negligence of the defendant, without any intent on his part to cause any injury, is a single or a multiple offense. If the respective courts differ in their conclusions in cases involving other offenses, such difference arises nevertheless on the question of fact as to whether the intent of the perpetrator was ringle or plural. In the case before us there is no basis for the claim of multiple intent either as a question of fact or of law. In the careful research of counsel for the state, no manslaughter case has been found to support its contention. All the cases which involve manslaughter speak with one voice on this subject. Though this court has had no occasion to pass upon the question in a case of manslaughter, its holding in the cases above cited is clearly consistent with the holdings in the manslaughter cases cited herein.
“In line with all the other courts, which have passed upon the specific question, we now hold only that an act of negligence on the part of a tort-feasor, which results in the involuntary killing of two or more human beings, is ordinarily a single offense and is subject to one prosecution.’’ (Italics supplied.) (p. 1448.)
The state cites no decision of this court, and we know of none, which is authority for the contention that three offenses were committed. On the contrary, all Kansas cases in point noted in my research support or tend to support the proposition that only one offense was committed. State v. Johnson, 70 Kan. 861, 79 Pac. 732, goes even further in some respects than the rule here supported. In that case the defendant was charged with an assault upon two named persons “with certain deadly weapons, to wit, large-bladed knives and clubs and an umbrella,” with an intent to kill them. It was held that only one offense was charged. In State v. McLaughlin, 121 Kan. 693, 249 Pac. 612, the defendant was convicted of two offenses — being drunk on a public highway and operating an automobile while drunk. This court reversed the judgment and directed the trial court to require the state to elect upon which count it would stand. It was said in the opinion — which cited State v. Colgate, 31 Kan. 511, 3 Pac. 346, and other former Kansas cases *149—that being drunk on the highway was an essential element in the act of driving a car on the highway while drunk, and that “two distinct penal offenses cannot be carved out- of that single and identical delinquency.” In the instant case the state succeeded in carving three offenses out of a “single and identical delinquency.” In our latest case touching the question, State v. Phelps, 153 Kan. 337, 110 P. 2d 755, two persons were killed and the information contained two counts. A sentence for a single offense only was imposed, although the court had refused to instruct the jury that the defendant could only be found guilty on one count. We refused to reverse because of such refusal, stating that since only one sentence had been imposed the defendant had not been prejudiced by refusal to give the instruction.
In State v. Taylor, 138 Kan. 407, 26 P. 2d 598, the defendant had fired two shots and two people were wounded. We said:
“Conceding, without deciding, that if he had fired but one shot and the bullet had wounded his two victims his act would have constituted but a single offense,” etc. (p. 414.)
The opinion went on to say that separate shots do not constitute a single offense where two persons “are wounded by separate shots, fired in quick succession, although the circumstances leading up to the affray may have been identical.” (Italics supplied.)
2. If the trial on the first count constituted trial on the one offense charged in the information it must, of course, be conceded that the defense of prior jeopardy became available as to the other two counts.
3. It is true, as stated in the court’s opinion, that the ordinary rule is that the defense of prior jeopardy must be specially pleaded. But it has been held by many courts that this rule does not apply where the record itself discloses the facts — brought to the attention of the court — showing prior jeopardy. Under such circumstances a special plea containing these facts would be unnecessary and superfluous. (For discussion of this exception to the rule, and supporting cases, see L. R. A. 1917A, pp. 1234-1237; 1 Wharton’s Criminal Law, p. 556, note 20.) In Robinson v. State, 21 Tex. App. 160-162, 17 S. W. 632, it was said- — after recital of the general rule that prior jeopardy must be specially pleaded—
“Was it necessary in this case that defendant should have specially pleaded his former acquittal of aggravated assault? We think not. Both trials were had in the same tribunal and upon the same information. Judicial cognizance *150should have been taken of the previous action of the court, and what had transpired therein with regard to the case, and especially such proceedings as appeared of record in the case. ... In such case the court is bound to take cognizance of the facts, they are a part and parcel of the case before the court, and the defendant is not required to plead them.”
This court has given definite sanction to the exception in State v. White, 71 Kan. 356, 357, 80 Pac. 589, the pertinent syllabus of which reads:
“Ordinarily former jeopardy must be pleaded in bar of further prosecution, and such plea must be interposed upon arraignment, before pleading to the merits. If, however, upon a second trial of the same action it be claimed that the accused was put in jeopardy by the first proceeding, and the record itself discloses all the facts, they need not be pleaded anew, nor proved aliunde. Upon the question’s being raised the court will take cognizance of such facts from the record, and determine their proper legal effect as if upon demurrer to a plea reciting them.” (If 2.)
That is precisely the situation here presented.
4. Can it fairly be said that the appellee deliberately waived the defense of prior jeopardy when she entered a plea of guilty to the three counts of the information? I do not think so. Immediately after the plea had been entered counsel raised the issue and urged it upon the court. Perhaps counsel should have formally moved for leave to withdraw the plea. But on such a fundamental, constitutional issue I do not think we should insist upon a particular procedure. What was done was in substance tantamount to motion to withdraw. It had no other significance. And when the court took the position that three offenses were involved should defendant then have withdrawn her pleas and forced a trial on the second and third counts? Possibly so, but in my opinion we cannot justly, under the circumstances, hold that her failure to do so forever precluded her from raising the question. Furthermore, she had pleaded guilty to “culpable negligence” In her plea to the first count: What would it have availed her to plead not guilty on the other two counts which involved the same facts?
5, 6. Only brief comment is necessary. If the sentences on the second and third counts were void for reasons heretofore„stated, unquestionably the court had power to set them aside. (24 C. J. S. 120 and cases cited.) I say that the court would not only have the power, but the duty to do so. If the sentences were voidable only then the court still had power to set them aside under the authorities presently to be cited.
*1517, 8. These will be discussed together.
As already indicated, I have no quarrel with the decision in Parks v. Arwrine, supra, as applied to the facts there involved. The rule there stated, however, is broader than required by the facts of th$ case and should not be applied to an essentially different situation such as we have here. The Parks case dealt with an attempt to increase the punishment and the authorities cited in the opinion deal almost wholly with cases of that sort. In most cases the generalizations quoted are specifically so conditioned. 15 Am. Jur. 128 was cited and I quote a pertinent sentence from the quotation:
“He cannot, however, set aside a sentence and impose a new or different sentence increasing the punishment after the defendant has entered upon the execution of a legal sentence.” (Italics supplied.)
On the page following this excerpt from American Jurisprudence it is specifically stated (p. 131) that 'there is a conflict on the question of whether during the term the judgment may be modified, after the execution of the sentence has begun, “by reducing the punishment.”
Again, the opinion in the Parks case quotes a general statement from 24 C. J. S. 118. On the following page, 24 C. J. S. 119, it is said:
“Moreover, it is the rule in at least some jurisdictions that where a sentence has been partly executed, it may be revised and another in diminution or mitigation substituted for it during the term. The basis for the allowance of a diminution of punishment, while denying the court’s power to increase it, is held to lie in the fact that in the latter case accused would be subject to double punishment for the offense.”'
Again, in the Parks opinion the general rule is quoted from 16 C. J. 1314. But following the quotation given is the following:
“It has been held, however, that where a sentence has been partly executed it may be revised and another in diminution or mitigation substituted for it during the term.” (16 C. J. 1315.)
Eight Kansas cases were cited in the Parks opinion and all were persuasive on the issue being considered, but careful éxamination discloses that every case touching the issue involved efforts to increase the sentence. Indeed, in State v. Meyer, 86 Kan. 793, 798, 122 Pac. 101, one of the cases cited, the court specifically declined to broaden the rule beyond that, saying:
“We need not determine the effect of a modification which remitted a part of the penally or shortened the term of imprisonment, at the instance of the defendant,” etc. (Italics supplied.)
*152One of the early cases generally relied upon in support of the view that the sentence cannot be modified, either by increasing or decreasing the punishment, is Ex Parte Lange, 18 Wall 163, 167-174; 21 L. Ed. 872, 876-878. But in the comparatively recent case (1930) of U. S. v. Benz, 282 U. S. 304, 75 L. Ed. 354, the United States supreme court discussed the Lange case at length for the purpose of showing that it had been misinterpreted, and squarely held that—
“The power of a court to amend a sentence of imprisonment during the term of court in which it was imposed, by shortening the period of imprisonment, continues after service of the sentence has been begun.’’ (21 L. Ed. 872, headnote 1.) (Italics supplied.)
The whole question is thoroughly examined in the opinion in the Benz case and the holding is clean-cut and unequivocal. Many passages from the opinion might well be given. I quote only the following:
“The general rule is that judgments, decrees and orders are within the control of the court during the term at which they were made. They are then deemed to be ‘in the breast of the court’ making them, and subject to be amended, modified or vacated by that court. . . . The rule is not confined to civil cases, but applies in criminal cases as well, provided the punishment be not augmented. ... In the present case the power of the court was exercised to mitigate the punishment, not to increase it, and is thus brought within the limitation. . . .
“The distinction that the court during the same term may amend a sentence so as to mitigate the punishment, but not so as to increase it, is not based upon the ground that the court has lost control of the judgment in the latter case, but upon the ground that to increase the penalty is to subject the defendant to double punishment for the same offense in violation of the fifth amendment to the Constitution.” (pp. 306, 307.)
Admittedly, federal decisions, including those of the supreme court, are no more binding upon us, upon such questions, than are those of other state courts. But the opinion in the Benz case is not based upon any particular provision of federal statute, and what is there said as to the power of courts is equally applicable in principle and reasoning to state courts.
I shall not discuss the contention that the trial court was without statutory authority to order the defendant brought.back from Lansing. It did issue such order and the warden honored it. Whether that was irregular or not is not now a controlling issue. The fact is, she was brought back, was in court, and I am firmly convinced that the trial court did not exceed its powers in the action it then took.
Is the appellee now left without recourse? With no intention of *153prejudging such a question — not now directly before us — I simply call attention to some obvious difficulties — surmountable, it may be —to fortify the thought that the instant judgment should not be' reversed except for the most compelling reasons.
If the defendant may yet appeal from the original judgment what might be said upon review about her plea of guilty? If she waived her defense of second jeopardy, is not such defense still waived upon appeal? And if the trial court had no power to modify the sentence might we say that it erred in not doing so? And as to habeas corpus proceedings — which in any event could only be brought after she has completed her sentence on the first count — what about the contention that the general rule is that the defense of prior jeopardy must be raised upon appellate review and is not available in a habeas corpus proceeding? (15 L. R. A., n. s., 227, 233.)
In conclusion, I do not share the fears expressed in the court’s opinion that dire results may flow from adoption of the rule followed by all federal courts and in many state jurisdictions. The power to reduce the sentence is limited to the term and appellate review still exists. Similar power to modify in civil actions of far-reaching consequence is universally recognized. Besides, the protection of a great constitutional guaranty — a thorough-going protection which looks through form to substance — should weigh heavy in the scales.
Smith, J., concurs in the foregoing dissenting opinion.