Appendix — Zimmer v. Kansas

la

APPENDIX

No. 44,291

Ghia ane :

Stave or Kansas, bed

v.

Wiis FREDERICK Zimoer, ©

, Appellant.

—>—

“he | ‘Syllabus by the Court

_ dn an appeal by defendant from convictions of kid-

naping in the first degree, with bodily harm inflicted, and

of murder in the first degree; the record is examined, and

. it is held, under the facts, conditions and circumstances,

and for reasons set forth at length in the opinion, the judg-

ment rendered and sentences imposed against defendant

must be affirmed, ~~ | Noe L7L gs

_Appeal from Shawnee district cour _ division” No, 2;

Marton Bearry, judge. Opinion filed: April 8, 1967. Af.

firmed: $4, 40 otk to |

Etwarne F, Pomeroy, of Topeka, ‘argued the\cause, and _

Emerson M. Pomeroy, of Topeka, was with him on the

brief for the appellant. _. ies Bite

\ |

Roserr D. HeEcut, county attorney, argued the cause, :

and Rosert C. LonverHoim, attorney general, was with

him on the brief for the ‘appellee. SREP Gdns a,

_——

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ss fap

ie aA |

The opinion of the court was delivered by

Harman, C.: William Frederick Zimmer was convicted

of the offenses of kidnaping in the first degree, with harm.

_- inflicted (K. S. A. 21-449) and of murder in the first degree

(K. S. A. 21-401). As punishment. the jury imposed the

? . , death penalty for the kidnaping charge and life imprison-

ment for the murder. The trial court denied appellant’s |

motion for new trial, and adjudged sentences in accordance

with the jury verdict, from which defendant Zimmer has‘

appealed. ie ere

’ The charges grow out of the abduction and slaying of -

Gladys Cora Johnson, a Negro girl aged seven years. _

\ Appellant Zimmer’s contentions of error will, so far as

- “\ practicable, be dealt with chronologically.

The. first contention is based on the failure to appoint

counsel for appellant during a particular period of: time.

_- To avoid possible misunderstanding in this area, certain

. background facts should be stated although all are not di-

_ rectly pertinent to the precise error asserted, |

The offenses allegedly occurred on Saturday, November |

, * 14, 1964. Appellant, forty years-of age, a resident of Kan... -.

7 City, Kansas, was arrested about 9:00 p.m. on Sunday,

ovember 15, at Marysville, Kansas.. At the time of this

initial apprehension he was advised by an agent of the

' Federal Bureau of Investigation of his right to have the ©

_- Services of an attorney and to eonsult with anyone else

he chose. He indicated his understanding of his rights and :

no complaint is made as to the character of advice given.

_ , Later the same night and prior to the time he was brought

by police to Topeka appellant told his brother-in-law, a

resident of Marysville, to callappellant’s wife and have -

her get a lawyer for hitn. Appellant was brought to Topeka

t+.

19a

house. He: doesn’t know how far distance it was from

the initial point where he said he had the little girl

with him.’ Said, ‘This school house would either be a

red or a buff, some color like that. It was.not a white. -

Anyway it was an off shade he described it’ He said,

‘It was on a graveled road on an upland“grade sort of

‘and in describing this school house,’ he ,said, ‘The

inner door has a lock on it.’ He said, ‘By the inner.

door he meant it was an alcove or foyer, whatever

you want to call it where ‘the students goshang their

coats up on the outside. There was hooks there.’ He

says, ‘He remembers getting out of the car and walk. -

ing into this foyer. The little girl is still in the car.

right at this time. He was scared and hunting a place.

to hide.’ This is what he said at this time. ‘He comes .

back out,’ he said, ‘And gets in his car and goes west

and possibly north, again. He doesn’t know how far.

And he comes to a field. He describes’ this field as

being a field where you turn in off of a graveled road,’

and he ‘said, ‘As you turn in,’ he said, ‘There’s a dry

_ Wash in the right-hand side. This dry wash is bordered

with trees.’ He said, ‘It’s a winding dry wash.’ He

said, ‘And I drove clear’ to the end of it where you -

' couldn’t be seen from the road.’ He said; ‘There was

a small terrace right next to this dry wash,’ and at

this time he was asked if there was a machine made

or a natural terrace like they do make: in fields. He |

said, ‘He thought it was man made, but he wasn’t cer-

tain. He described this field.’ He said, ‘This field was’

sloped a little bit and it-was either alfalfa or wheat jn

this field other than the tree linéd dry wash,’ He said,

‘He next remembers that he looked over ‘at the little

girl and she was still sitting here in the front seat. He

3

takes-a drink of whiskey, leaned back in the seat and

this is the last.he remembers until he wakes up.’ He

says, ‘He don’t know how long it is. He don’t know

what time he got there, but then he wakes up and on

wakening,’ he said, ‘It’s getting dusk. That the sun

is in his eyes and the little girl is not in ‘the front seat,

but he looks back and the trunk lid is up. He gets out

of the car and walks to the trunk lid and the little girl

, is laying inside the trunk.’ He said, ‘By looking at her,

the wounds and the blood about the head and her- body

was cold,’ he said, ‘It was getting cold. That he knew. ©

that she was dead.’ He said, ‘He picked her up. She

‘had on a pink dress,’ He said, ‘He picked her up and -

’ ~

“ey,

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took her:to the terrace that he was parked beside on

the dry wash there and laid her on the back side of the |

‘terrace on this dry wash that bordered this dry wash.’ -

He Was asked at this time, Major McKinney asked him |

at this time-if.he had sexually molested the little girl,

‘and he said, ‘I don’t know.’ He said, ‘But the tests will

show when’ they find her.’ He was asked ‘if she had

any clothing on and“he said specifically at this time, .

‘That she had the pink dress, but he could not tell, he

could not remember whether she,had any undercloth- |

ing on or not.’ He was asked again if he had molested

her at any time. He said, ‘He did remember slapping

her, in the area north of town because she was érying,” «

Also at this time he was asked again about the hatchet.

He ‘said, ‘That the hatchet that he was shown the day

before did iook like his-hatchet. He had one like it in

other words.’. He said, ‘But he don’t know how it got a

_' . in the car. He thought it was home in his garage.’ He

says—oh, at this time also he said, I believe he said,

‘That his lawyer, was going to be mad at Him for talk-

i

%

the early morning of Monday, November 16. ‘On the same

day while in jail in Toyeka, he was consulted by an attor-

ney from Kansas City, Kansas. It appears this consulta-

tion was the result of the request relayed to his wife.

On November 19 the judge of the city court of Topeka,

the examining magistrate upon the charges filed, in accord-

ance-with custom in Shawnee county in all felony. cases,

appointed Mr: Sam Crow, a practicing attorney at Topeka,

counsel for appellant. This appointment was for the pur-

' pose of preliminary examination which was held Novem--

ber 25, at the eonelusion of which appellant was bound over.

for trial to the district court of Shawnee county. On De- et

cember 21 appellant filed in the latter court an application

for the appointment of an attorney: This instrument was

as follows: 3 :

“APPLICATION ‘FOR APPOINTMENT

: OF COUNSEL

“Comes now the defendant and applies to the Court

for the appointment of counsel to represent him in the

District Court of Shawnee County, Kansas.”

- On December 23 Mr. deans appointed by the district

' court to represent appellant upon the' hearing of the applica-

tion. Hearing was held December 29 before the judge of

the division then in charge of the criminal docket. At the

hearing appellant offered no evidence in ‘support of his

application, choosing to rely on the written request. The

district court then directed that appellant be examined under

oath by the prosecution, which was done. In substance ap-

pellant testified he was employed as an engineer by the .

Union Pacific Railroad Company at a gross salary of about

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’ - 5 4a | ‘ . A !

$300.00 every two weeks; that his wife was employed by the .

same company at a salary of about.$400.00 per month; that

he owned jointly with his wife his home in Kansas City,

Kansas, of a‘ value of about $10,000, furniture, and a 1954

Plymouth, and that his wife owned a 1958 Volkswagen, all. -

free of indebtedness ; that he had approximately $2,000.00 |

on deposit with the Valtveail credit union, about $800.00 in a

bank account, and government bonds in an amount between

‘$250.00 and $500. 00; that after these criminal charges were ~

filed. he gave a power of attorney ‘to his wife permitting .

her to transfer title to the property; he testified he did not

know what the purpose of any transfer was, that his wife

“asked for my cooperation on it and that’s what I did.”

_ Appellant further testified he had not contacted any at- “

torney and no attorney had refused to represent him. The.

‘prosecution introduced income tax records showing that,

for the year ‘1962 appellant had wages of $9,360.24 and his

_ wife $5,154.80, and for the year 1963 appellant had wages

of $8,448.74 and his wife $5,137.40.

Based upon.-the foregoing the court found appellant was

not indigent and was,‘able to employ counsel of his own

choosing, that appellant had made no effort to employ

counsel and there was no evidence any counsel had refused

employment, and:the court on December 30, 1964, denied ap-

_pellant’s application.

Although the record proper does not 80 disclose, we are

advised by the prosécution in its brief, and it is not contro-

verted, that on the next day following this decision appel-

lant’s wife filed: suit in the district court of Wyandotte |

county, Kansas, against appellant asking for divorce and

division of property; the county attorney of ‘Shawnee

county attempted to intervene in the divorce action for the

‘purpose of having a portion of the marital property set

oa

aside to defray the expense of appellant’s. defense in this

case; this attempted intervention was denied. aw

Commencing with the J anuary, 1965, term.of court the

judge of the second division of the-Shawnee county district

court assumed charge of the criminal docket and subsequent

proceedings herein have been in that division, _ 7s, 3

On January 25, 1965, the court appointed a commission

of three doctors to examine appellant’s mental condition.

On January 28, 1965, the commission. reported it found ap- *

'. pellant “not insane, an idiot, and/or an imbecile: and is in

our opinion able to. comprehend his position and make his

defense in the cause now in hearing.” = |

On February 2, 1965, the court held a hearing on its own

motion to determine whether cour el should be appointed

to represent appellant. The cour found appellant did ‘not

have counsel of his own choosing and had not employed

counsel and further, that appellant had. advised the court

he did not intend to employ counsel. Thereupon the court

appointed as counsel for appellant Mr. Elwaine F. Pome- .

roy, @ practicing attorney at Topeka. - Trial ‘commenced

March 15, 1965. “%

As stated, appellant filed his request for the appoint-

ment of counsel December 21, 1964; the initia] application

- was denied and it was not until February 2, 1965, that

counsel was appointed for him. It is upon thé December

failure to appoint counsel and the consequent absence

thereof during this six week period that appellant bases his

‘first contention of error. He asserts he was entitled to

assistance of counsel at every stage of the proceedings and

that this right was denied him during the period between

December 21, 1964, and’ February 2, 1965. - Menger:

There is no question under both our state and federal

constitutions as. to the entitlement of one accused of crime

ie NOOR bit ik iS k REOO AA CTA ANNE AA AMLO EC BALA IER Sih OBB BALE EE RE kT a nr Oh NA DAT hatin fh I SO a SE

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~to the effective assistance of counsel in his defense. It is

now well established this entitlement extends to every criti-

cal stage in a criminal proceeding where there may be a

substantial loss of advantage to the defendant, and it may

not be denied one who because of indigency is unable’ to

employ counsel. This right may be waived, provided’ the

waiver is made voluntarily, intelligently and knowingly. “

. We are aware of no authority for the appointment of

counsel at state expense for one financially able to employ

counsel absent other compelling reasons. Our statute (K. ©

'S. A. 62-1304) makes provision for such appointment only’

_ if the accused be not able to employ counsel. It expressly

- authorizes withdrawal of court-appointed counsel upon

knowledge that the accused or his relatives or friends are

able to employ counsel. Implicitly, where financial ability

is concerned, our decisions have limited the benefits of the

statute to indigents.

Our statute for appointment of counsel is similar to Rule

44 of the Federal Rules of Criminal Procedure. In admin-

_ istering this rule the federal courts have held one who is:

‘financially able to eniploy counsel is not entitled to have

counsel assigned by the court (see 4 Barron Federal Frae-

. tice & Procedure, Rules Edition, § 2461).

Appellant was of mature age, competent, with full op-

‘ portunity to contact counsel (it is not- contended other-

wise), and he had substantial monetary resources. -The ©

guarded nature of his written application for counsel is |

patent, no reason being given for the request.

We would not undertake to prescribe financial standards

of.eligibility for appointment of counsel which would be

_ applicable to all offenses in all districts under all condi-

_ tions. These might well vary dependent upon the par-

ticular circumstances. Suffice it to say here we think the ‘

Ae j ; - Te . :

‘trial court in December acted properly in refusing to ap-

point counsel upon the showing made. Appellant argues:

if counsel should have been appointed in February, coun-.

sel should have been appointed in December. This does

_ not necessarily follow. Appellant was shown not te be an

' indigent in December—the record contains no showing on

the subject in February and the propriety of that appoint-

ment is not an issue.’ : : ba

It should be noted this was not a request for counsel

made before an interrogation phase of a criminal »proceed-

ing where the relationship of the financial condition of an

accused ‘to the Scope of the right involved might be ques-

tioned. Nor is there any showing that in the interim period

when appellant was without counsel there was any critical.

proceeding had, plea taken, incriminating statement made

or defense lost, or of prejudice of rights in any way. Ap-

pellant merely speculates something more favorable to him

might have developed had he had an attorney. ‘Nor does

the fact that a sanity commission was appointed and

acted during the interim when appellant was without coun-

sel present any basis for relief (State v. Andrews,. 187 -

Kan. 458, 357 P. 2d 739, cert. den. 368 U.S. 868, 7 L. ed. 2d

65, 82 S. Ct. 80). This contention of error may not be

upheld (see State v. Lee, 197 Kan. 463, 419 P. 2d 927, cert.

‘den. February 13, 1967, — 0: 8. —, 17 L. ed. 24 797

_ 87S. Ct. 900). piey Of ut ! 5

Appellant’s next contention of error involves a pill

. taken from him by police officers at the time of his arrest

and which came into custody of the Kansas Bureau of In-

vestigation. Allegedly the pill was of a type appellant had -

procured from a layman at his employer’s first-aid station

and which he had been, taking for the purpose of curbing

his appetite in a weight reduction effort. On March 9, 1965,

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appellant’s counsel orally requested the court to order the

bureau to make an analysis‘of the pill, indicating he had

previously understood through a Topeka police officer such

an analysis would be made. The principal reason advanced

for the request was to save the state the burden of ex. |

_ pense of private laboratory analysis. The prosecution op-

-posed the request. The court took the matter under ad-

visement until the following day when it heard the matter

further. Additionally counsel indicated a time factor in

getting the pill analyzed privately. The court denied the

request. In making its ruling the court remarked :

“The Court: All right. The County Attorney is eom-

_ pletely in charge of the prosecution of this case for

_ the state. And no policeman has any authority to make

any commitment he will do anything for you in prep-

aration of your defense. Regardless of what some po-.

~. Hieeman may have intended to do, the County Attorney

obviously has no intention of making an analysis of

some pills. And I am satisfied that he is not required

to. I am satisfied that if you think the pills have any.

_Televancy to the lawsuit and want them analyzed for

use by you in the defense of this case that you are going

to have to.do it yourself.

“The Court: There is no valid agreement to have the

pills analyzed and they’re not about ‘to have the pills

analyzed. You can’t make an agreement with a police-~

_ Man even if he is an official in the police department

' that he is going to do something to help you, prepare

_the defendant’s case for trial. The County Attorney

is the one in charge of this case and I don’t believe the

County Attorney -has made any commitment .to you,

i:

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there is no evidence that he has. That will be my rul-

ing. If you want them analyzed you will have to an-

alyze them yourself. That’s my best judgment: -

“The Court: I mean [you] ‘have to have them an-

alyzed yourself.” aes. 3

~ Assuming relevance of an analysis of the pill (which ap-

pellee does not concede upon the showing made) we see

no reason to declare it was essential that such analysis be

made by a state law enforcement agency rather than by

private individuals or agencies. The record affirmatively

_ Teveals that counsel for appellant was aware he. might have

the pill analyzed at public expense if he desired to do so. _.

It also reveals this is not an instance of suppression of’

evidence by the prosecution, Counsel was never denied in-

spection or custody of the pill nor did anyone allied with

the prosecution do anything to prevent him from having

his own analysis of the pill made. The record further re-

veals counsel had other pills of thé same kind which he’

had previously secured at appellant’s home; we cannot tell

whether or not’ these were ever analyzed. ;

At most the matter lay in the sound judicial discretion —

of the trial court and we see no abuse thereof in the ruling

made. | 3

On March 11, 1965, thé -state filed a motion to endorse

_ the name of an additional witness on the information pur-

. Suant to K. S. A. 62-802. The same day counsel for ap-

pellant was orally notified of the requested endorsement

and ‘was given. the name and address of the witness and a

summary of her expected testimony. Hearing was had on

the motion March 12 and, over objection, the request was

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allowed, The witness was a clerk in a liquor store in

Wamego whose trial testimony was very incriminating to

appellant.

‘As stated, trial ininbindlit March 15. It appears ‘the

investigating police officers took a statement from the wit- —

ness as early as some time in November; the county attor-

- ney knew of her existence but first interviewed her March 11.

Appellant assigns the ruling permitting the endorsement

- as error. eae

K. S. A, 62-802 seoviden: in pertinent part the prosecut-

ing attorney shall endorse on informations filed by him the

names of witnesses known to him at the time of filing and,

in addition, names of other witnesses who afterward be-.

come known to him, at such times before trial as the court’

may prescribe. The statute is designed to protect a defen-

dant against being taken by surprise at the trial. In .apply-

ing it this court has consistently held such endorsement,

even during trial, rests within the sound judicial discretion

of ‘the trial court and that, where permitted, material preju-

- diee to the rights of the defendant must be clearly shown |

before it constitutes reversible error (see State v.-Poulos,

196 Kan. 287, 411 P. 2d 689, cert. den. October 10, 1966, 385

"U.S. 827, 17 L. ed. 2d 64, 87 S. Ct. 63). Sh ih

‘We think ‘no such abuse of discretion is shown. Counsel

for appellant was notified four days in advance of trial as

to the witness and the expected testimony. The record dis- ae

closes counsel did interview this witness prior. to the com- . |

mencement of trial; it is not shown how, by reason of the

late endorsement, there was any disadvantage to appellant a

or how there would have been greater safeguard for his

| rights by reason “ an earlier endorsement. In arriving

: /

gaa Hpac

a.)

at the conclusion reached we do not overlook counsel’s re-

quest for continuance, to be discussed next. —

At the conclusion of the foregoing hearing on March 12,

__the following occurred : | :

“Mr. Elwaine Pomeroy: We would popula

move the Court for at least a one week’s continuance:

in the trial of this case so as to allow us to adequately -

prepare for the defense.” :

.

The court denied the motion, which ruling isabaigne as

error. say :

IK. -S, A: 62-1414 ‘orovided that soltinnenens. may be

granted in criminal cases for like causes and under like

‘circumstances as in civil eases. Continuances in ci. il cases

are governed by K. S. A. 60-240(b) which provides: , |

“The -court may for good cause shown continue an_

« action at any Nps of the proceedings upon such terms

as may be just....”” |

And K: §. A. -60-240(c) provides the granting of con-

tinuances in all cases shall be discretionary. This latter

_ proviso is in harmony with long-standing case law.

In State v. Hickock & Smith, 188 Kan. 473, 363 P. 2d 541, .

appeal dismissed 373 U. S. 544, 10 ‘LL. ed. 2d 688, 83 S. Ct.

1545, this. court- stated: ,

“«.. the matter of a continuance ina criminal pros-

ecution is largely within the discretion of the trial

court and ... its ruling thereon, will not be disturbed

unless it has been made to appear that such discretion

- has been abused to the prejudice of substantial rights

_ of a defendant.” (p, 482. ). ier

a8 ee ie

* (See, also, State v. Latham é York, 190 Ken 411, 875 i

P.. 2d 788, cert. den. 373 U. S. 919, 10.L. ed. .2d 418, 83

S. Ct. 1310.)

We think appellant’s assertion of error is not well taken.

Ap t’s counsel, after his appointment February 2, 1965,

assisted by his brother who is a practicing. attorney in

partnership with him, spent a total of approximately 330

- hours erreon for trial, including investigation, re-

search and interview of .all witnesses who testified at the

. trial. ‘The record of- trial reflects this massive preparation.

It reveals industrious, zealous, competent and resourceful

advocacy in behalf of appellant. Moreover, at the time the

‘motion ‘for continuance was made, no particular reason

therefore was ‘advanced, that is, good cause Was not shown, -

and later, upon hearing of the motion for new trial, no

showing was made, as it might have been, as to how or in

what manner appellant was prejudiced by the denial of the

contigmance. Again appellant simply speculates that with

more time something more favorable to him might have

been procured ; this is not good cause. Under all! the cir-

cumstances no abuse of discretion i is shown.

Appellant next contends\he was denied due prdeses of

law in that. the state legislature which at its 1955 session

_ added the death penalty to our kidnaping statute (Laws,

» 1955, Chap. 193, 8 1) was improperly ve unas and

hénce its acts were not valid.

This contention has been answered adversely to appel-

lant in State v. Latham é York, supra, wherein it is said:

“Assuming that the legislature has failed to effect

- @ new apportionment of the districts of its members

as required by Art. 10, Sec. 2, nonetheless the acts of

such, legislative body would be those of a de jure legis-

| ee, aa ac

lature:and the members thereof are de jure -officers.

All the reported decisions sustain the proposition that

the fact a legislature has not /reapportioned in accord. .

ance with ‘the state constitution does not preclude it

from making any law or doing any act within the leg-

islative competence. [p. 426] fae ,

“The question of the failure of the legislature’ to

reapportion itself, in accordance with the mandate of

Art. 10, See. 2, could have no possible bearing upon the ~

validity of the defendants’ convictions.” (p, 427.) - +

The remaining specifications of. error involve’ trial rul- |

ings, requiring review of the evidence which is summarized i

as follows: ‘ aa ae

, Proszoution Eviwence . .*

Betty Michael, who lived at ‘915 North Taylor in Topeka,

the mother of Gladys Cora Johnson, aged seven, last saw

Gladys alive at home about 7:30 Saturday morning, No-

vember 14, 1964, prior to leaving for work at a cleaning

shop; Mrs. Michael had made arrangements for her three —

children to stay with’ a Mr. Eatmon at the Eatmon home

at 1335 North Taylor until jher return from work; the

mother ‘next saw Gladys’ body a week later at a funeral

home. — . ae ere,

At about 8:00 a.m. a neighbor who lived across the street

from the Eatmon home took her dog out in the yard; she

noticed three Negro children inside the Eatmon yard—two

girls and a boy; she went back inside her home and. very

| quickly thereafter a little Negro boy and gitl came to her '

front door crying and: screaming; the boy, who was the six

sd

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om

year old brother of Gladys, said, “Lady, call the police.

- A white man took my sister and went that away.” The -

boy said the man was in an orange car. The — called

the police..

_ On Saturday morning, Nereeael 14, an air force ser-

geant stationed at Forbes Air Force Base was going hunt-* ,

-ing north of Topeka; while traveling south on the Brick-

yard road northwest of Topeka looking for a place to hunt

he noticed a car parked in a field about a thousand feet

west of the road; he drove over along the side of the car

which was a 1954 Plymouth, color light over dark brown; a

white man and a small Negro girl were in the car; he had

- a brief conversation with the man about hunting; the man ©

stated the property belonged to the Browns and that he

_ had permission to hunt; the sergeant noticed the little girl

' was crying and whimpering ; he spoke to her but she did not

respond ; the Plymouth automobile bore a Wyandotte county

_ license tag which number the sergeant wrote down; he went

to a.nearby.house where he was told the property did not

: belong to Browns; he returned to the field but no one was

there: he went ‘eat to the house and at about 9:00 a.m.

telephoned the sheriff’s’ department about the incident;

later he identified photographs of appellant’s automobile as

showing the same vehicle he saw in the field; on November

15 he identified photographs. of Gladys Johnson as being .

pictures of the girl he saw in the car, and, out of a group’

‘of sixteen, lie identified, two photographs. of appellant Zim-.

mer as being the man he saw in the field;.on November 16

he identified appellant from police neuve as the person he

saw in the field and at the trial he identified eerur et d as

the same man. —

The license tag number jotted dewn by the. sevgoat was

identified as —_— registered i in the name of William F.

lia

Zimmer, 1872 North Thirty-First treed Kansas City, Kan-

sas, for a 1954 Plymouth sedan. |

Sometime between 12:00 noon and 12;30 p.m. on No-

vember 14 a clerk at & liquor store in Wamego, Kansas, .

noticed a.car with a white top and a dirty pink or salmon

body parked at the curb in front of the store; a white man

and a small Negro girl were in it; the girl was staring

‘straight ‘ahead and did not ove; the man went into a

cafe next’ door and returned rrying a brown paper bag;

as the car drove away the clerk noticed it bore a. Wyandotte

county tag at about 1:15 p.m. the same car returned with |

only one person in it and parked in the store driveway;

the driver came into the liquor store and conversed: with

the clerk about hunting; the clerk testifiéd there were blood

stains on his right arm and dry clotted blood around his

. fingernails; she noticed a “:, . , very odd odor. It was some-

' thing that I—I can’t describe—something like a wild, not

wild, but a fresh killed something 1 don’t know.”

- The clerk identified photographs of appellant’s car as

similar to the car she saw; she. identified appéllant as the

man she had seen with the Negro girl and who later came

back to the liquor store. sabia x5

On Sunday, November 15, the Topeka police department

telephoned the police at Marysville, Kansas, that a kid-

“ naping’ charge had been filed against appellant and -re-.

_, quested his apprehension.

Appellant was arrested about 9:00 p.m. that evening

in Marysville by local police and taken to ‘the Marysville

police station where an agent of the Federal Bureau of In-

vestigation interviewed him; two bottles of whiskey were

recovered from him; appellant appeared to have been drink:

ing but was not drunk; at the time of the initial arrest the

16a

officers were looking for Gladys «who had notyyet been

found; appellant’s car was in Marysville; the FBI agent

asked appellant, “Would you mind if we looked into your .

ear?”, to which appellant replied, “I don’t mind at all. You

oean look at anything I have”; appellant further stated,

‘“You can search anything I have. I have nothing to hide”;

appellant also replied to another police officer when asked

about looking into his automobile 7 “Be my guest. Do what

you want to with it,” thatshe “had no objection.” —

Two Marysville police officers, accompanied by appel-

Jant’s brother-in-law, took appellant’s car keys, went to his

ear, unlocked it, and looked inside it and: the trunk; the |

officers were told by the FBI agent to look for Gladys John-

son—that was their principal objective; the officers exam-

ined the trunk by flashlight and saw red stains on some

newspapers, on a shallow box and on a white cloth covering

a shotgun; they saw nothing else unusual and did not no-

tice a hatchet; their only purpose in looking in the trunk '

was to see if there was a ‘girl in it; nothing was removed*

from the car.

The FBI agent advised appellant ofthe dente charge

and, in the presence of his brother-in-law, advised him of

his constitutional rights and “made sure that he under- E

stood them himself”; he advised appellant he did not have

to make a statement, that any statement he made could

be used against him and that he could consult an attorney

' 6r anyone else; the advice was repeated and appellant re-

iterated that he understood; appellant gave the agent a —

statement as to his whereabouts on Saturday, November 14.

Later, while still at Marysville, appellant gave a similar

but more detailed statement to a Topeka police officer; he

17a

stated after getting off work on Friday, the 13th, he had

purchased shotgun shells and whiskey in Kansas City; after

_ arriving in Topeka he purchased more whiskey and visited.

various beer taverns, drinking beer and whiskey; later he

did some drinking with a woman and man whom he did not

know; the next thing he remembered was waking up alone

Saturday morning a block. south of the North Topeka fire

station; he took a drink and drove west, stopping at Silver

Lake around 7:00 or 7:15 a.m. to telephone his bréther-in-

law at Marysville to go on hunting as he would not be able

to get there; then he went to Manhattan, stopped on the

west side of Tuttle Creek lake, then went on toward Con- _

cordia, hunting pheasants on the country roads near there;

‘he shot two and put them in the car; later he threw them

away near Clifton; he went to- Hanover, then called a lady

friend at Marysville, picked her up and then went toa motel

at Washington where he spent the night; the next day,

Sunday, he and his lady friend spent the day on the side-.

roads hunting pheasants"but did not see any; after taking

her home he went to find his brother-in-law who informed

him the police were looking for him, _ :

Early Monday morning appellant was ‘taken by Topeka .

. . police to the Topeka jail; before he left Marysville he tele-

- phoned his ‘brother-in-law. and requested that he call ap-

' ° pellant’s. wife and tell her he was going to Topeka and to

get him a lawyer. _ ¥

_ Late Sunday night or early Monday morning appellant’s _

ear, which had been locked up, was towed to Topeka where

it remained in continuous police custody. ok se

~ On Monday, November 16, an attorney from Kansas City,

Kansas, consulted privately with appellant at the Topeka

eity jail. : ;

18a

On the same ‘day a search warrant for appellant's auto-

mobile was obtained and a copy served on appellant; the car,

which had been kept locked, was thoroughly searched by

the laboratory supervisor of the Kansas Bureau of Inves-

tigation and the contents removed and invoiced; when the .

trunk lid was opened the handle of a hatchet was visible

but the entire hatchet was not, it being behind the spare

tire; there was a reddish substance on the hatchet; visual

observation disclosed the presence. of hair on the hatchet ; ;

because of several stated reasons no attempt ‘was made

to take fingerprints from the hatchet; among items re-

moved from:the automobile were the hatchet,a piece of

newspaper, a cardboard box, a pair of undershorts and a~

pair of trousers containing a white handkerchief which was

not touched so that any evidence would not be disturbed, a —

pair of dress shoes and sweepings from the right front floor

of the automobile; the ‘custody: and transportation of these

items were traced to FBI laboratory examiners at Wash-

‘ington, D. C. |

On Tuesday, N ovember 17, after appellant had been -

visited by a lawyer and his wife, he was further questioned -

by police, one of whom testified: - ) ’

“So at this time the Defendant says, ‘Well, I ‘i

remember being in the: ‘pasture north of town: with a

little colored girl and she was crying.’ And Major

McKinney told him go ahead, At this time he asked

. him if he remembered anyone coming around the auto-

mobile anything other than him and the little colored

girl being in the area north of town. He said, ‘No, he

'. didn’t remember. anybody else. The next thimg he

remembers,’ he says, ‘He went’ west and possibly. a

_ little north’ on gravel roads. He arrived at a school

¢

. id

2la

ing te us.’ But he said, “Then he left the field and he

drove some more... .., . ’

The officer further testified appellant stated he went to

Wamego, then toward Marysville stopping occasionally to

remove bloody papers from the car trunk and hide them

in culverts and grass; that around 9:00 p-m. he arrived

at his brother-in-law’s house at Marysville; his brother-in-

law informed him the police were looking for him—he told |

him “Okay, he would head back for Kansas City”, but he.

Went west; near Hanover Junction he threw away the rub-

ber mat from the trunk of his car and fired his shotgun

_ twice to substantiate his story about shooting pheasants;

~ then he went to Hanover to call his Marysville lady friend

with -whom he had a few drinks and later spent the night

at a Washington motel; the next day he spent hunting the

side roads for pheasants; he took the lady home that eve-

ning and was later arrested at Marysville; appellant stated

he wanted to go and help find the little girl’s body.

The following day, Wednesday, November 18, appellant

went on the search for the girl’s body but he appeared to

have trouble finding the fiela although he described it in -

detail; on Saturday, November 21, a hunting party found .

the dead body of Gladys lying on a creek bank in a rural

area about four miles northwest of St. Marys, Kansas,

The Shawnee county coroner, a physician and surgeon

specializing in pathology, examined the body at the scene

where it was found; the body was clad only in a pink dress

and was frozen; there was only a small amount of clotted

blood under her head ; based upon his examination of the

body and the ground under it he was of opinion she was

not killed there but was dead not more than thirty or ferty

minutes when placed there; the doctor performed an:

22a

autopsy ;. ‘there were two, large crushing blows on the head,

Which shattered the skull; there were four deep wounds

with ragged edges across the neck and shoulder, one of

which fractured the spinal vertebrae and spinal cord; death

was caused by the blows to the head and spinal vertebrae,

any of which would have been fatal; the head wounds could

have been caused by a blunt instrument such as a rock, tire

iron or hatchet; the neck and shoulder wounds could have

been made with the cutting edge of a hatchet such as the

one found in the trunk of appellant’s car; the wounds were

made by a chopping type. blow; there was no evidence of

trauma to the vagina and evidence of sperm could not be

isolated in the vagina, rectum or mouth.

Additionally, there were sent to the FBI laboratory the

following: A small sample of Gladys’ blood, hairs from

her head, her pink dress, and a pair of white coveralls ;

worn by appellant while he tried to cut his wrist at the

- Topeka jail.

A chemist at the FBI laboratory ‘elie work winitinel

of examination of body fluids including blood, testified as a

result of his examination of the various exhibits hereto-

- fore mentioned that the stains on the cardboard box and.

the piece of newspaper were blood stains of human origin;

that corresponding spots on the trousers and the under-

shorts were blood of human origin; he was unable to deter-

mine the blood grouping of the foregoing; that the trousers,

undershorts arfd pink dress were negative for evidence of

semen; he identified stains on the handle and blade of the

hatchet as being blood stains of human origin, the blood

; belonging to group 0; there were possible blood stains on

both dress -shoes but this was not definite, nor was it pos-

sible to determine origin; the sample of Gladys’ blood was

identified as belonging to blood group O; a qugntity of

23a

blood on the coveralls could not be typed definitely as to

grouping because of the fabric of the coveralls,

A hair and fiber examiner at the same laboratory testi-

~ fied as to his examination; he explained in considerable ,

detail that hairs of the three races, Caucasian, Negroid and

Mongoloid, can -be Separately identified and within each

_ race hairs may be furthér examined microscopically with |

+ magnification up to 900 times so that approximately twenty-

one separate characteristics or points of identification may

be made for the purpose of hair comparison; he described

hair composition and the method of analysis; the sweep. ° °

ings from the front floor of the automobile contained both |

Caucasian and N egroid hair; there were three short Ne.

groid - hairs adhering to the_ reddish substance on the

hatchet ; the handkerchief in the trousers’ pocket contained

two fragments of N egroid hair possibly 1/16th to 1/32nd

inches long; all of these hairs as well as the known samples:

of hair from Gladys’ head were analyzed and all possessed

the same twenty-one characteristics or points of identifica-

tion; the witness was of opinion there was only a remote

- possibility that the hairs in the Sweepings, the handker-

chief and on the hatchet came from any person other than

Gladys Johnson. -

Derrense Evivence

Appellant testified in his own behalf. He described his

family and work background; he stated he did drink and

since he had quit smoking he had had a weight control -

_ problem; to control his weight he obtained some pills from ~

a fellow employee which he had been taking one in the

morning and one in the afternoon off and on for a Reriod

_ of three or four years; in August of 1963, in Kansas City,

Q4a-°

while en route to the post office in his automobile he was

cursed by some children who were blocking the street,

' with the result he argued with a child’s mother. and several

days later was arrested ona child molestation charge; this —

"charge was later dismissed; his only other arrests were

for peace disturbance and running a stop sign; in January,

1964, he was arrested but the only thing he remembered

was getting up from the supper table and waking up next

morning in jail.

. On Friday, November 13, 1964, appellant got off work

at 3:30 p.m..and after doing some chores and buying some

ammunition and a half pint of whiskey he started for

‘. Marysville where he had arranged to go hunting; around

8:30 p.m. he stopped at Topeka to get more whiskey and

then went to three beer taverns where he spent the evening; .

he met a woman from Phillipsburg and then aman with

whom he drank; before midnight he went to the hus ter-

- minal but was hazy about what happened thereafter ;- he

thought he went back to the taverns but wqs not clear; he

had a hazy reimembrance’ of going to a colored barbecue

tavern in North Topeka; the next thing he remembered

_ was waking up in his car Saturday morning south of the

fire station; there was another fellow lying in the back

seat; he had not seen this man before; each“of them had ©

‘a bottle; the man indicated appellant had promised to. take

him to Manhattan; appellant togk a drink and started out;

at Silver Lake he took another drink and he telephoned ;

his brother-in-law to go on hunting; the other fellow started

driving and appellant got in the back seat of the: car; he

: farthe rtestified; M

Bt ay |

“Q. What do you next remember? |

- A. Next thing I remember is urinating by the side . |

of the car, and I looked around, and the rear door

4

~~

25a .

‘ was open, and the trunk lid was iets about that much.

And. this pasture was ‘not the pasture that the Airman

seen me in, but a. pasture that had a pond in it, and

this pond was, oh, an sighth of mile away from the

car, but beyond this pond was a house that you could

_ See from where the car was parked. Now that’s the.

pasture that I was in, And in the trunk was this poor

little girl with her feet sticking out of the trunk about

a foot. ;

“Q. What did you do?

“A. Well, I pushed them in the trunk and closed:

the lid then got in the car and drove off. This is in

the pasture. I had to- let thyself out through a gate

\to get out of it, and I sto and opened the gate,

drove out and closed the gate because there was stock

‘in the pasture. fahdenis ac

_ “Q. And then what did you do?

“A. I drove around. I don’t know just what diree-

tion I was driving in, thinking what happened to mé, °

and I was—what am I going to do with this body, and

- I stopped at this school house, in the schoo]. -And the

school house we found later\was white, but I thought ‘°

it was colored. It was tan colored school house. I got

out and walked around the car and into the school

house foyer, and it was locked. I got back in|the car

and drove off and went some distance. I don’t :know

how far, but-I guess it isn’t too far‘ from this schoo]

house to this field that had alfalfa or wheat in it and

drove back in there, and again I’m not clear on my -

directions because the detectives told me I was wrong..

I drew them a map of this place. They. said, ‘My direc. °,

tions was off.’ After I got.to the end of this field I

26a

took another drink ued I-I must hewe passed out be-

cause I-went to sleep. I don’t remember any more until

almost dark when I woke up again. That’s.when I got

out of the car, lifted up the trunk and laid the little

girl along the bank—(did not finish sentence).

“Q. What did youdothen? —

. “&, T seen a lot of blood in the trunk on some news-

. papers. These newspapers I'took with me to use -to

clean the game with they are always short of news-

papers in Marysville. I don’t think they take any regu-

dar newspapers. We take the Kansas City paper and

had plenty. of them, so I always bring some along.

Well, the blood was all over these papers, so I thinking ©

“J got to get rid of those papers | some way so I closed

_ the lid, got back in the car and drove off. Now: this is.

getting dark. It’s getting sundown. | .

eee Court: Still Saturday?

-. “The Witness: Still Saturday, Sir. And the next

‘ eity I remember coming into is the east. edge of

- Wamego. So we had a cult time finding out

where this was because I didn’t remember going

through any other towns.” | .

Appellant testified he did not Sate being in ‘the .

~~ field where the airman saw hint; the first time he saw the

- Jittle colored girl she was ‘in the trunk dead; he had no

memory of seeing her alive; he had no explanation why

he did not then seek help; after leaving Wamego he started -

_seattering papers along the drainage and weeds until he .

~ got tid of them; he finally arrived at. Marysville about 9:00

or 9 :30 Saturday ‘evening where his brother-in-law told

him the police were looking for him; he told his-brother-in- °

law he would go back:to Kansas City; he didn’t. know why _

_

alibi and I don’t have no alibi, so I will just tell them I

went hunting. So I discharged my shotgun couple times

as evidence that I’d'gone hunting.” He then drove: to Han-

“over, called his lady friend, bought two pints of whiskey,

returned to Marysville and then went to a Washington

Motel where he y the night with his friend ; the next

day he drove around country roads with her looking for

or 8:00 Sunday evening; he got two half pints of whiskey

and had just found his brother-in-law when the police ar- -

rived ; he admit the story he first related about the affair

to the police on day night was similar to that which the

Topeka police’ officer testified to, and ‘that his statement

Tuesday evening, November 17, was the same as related

on the witness stand by plice officers; he told that story

so they would not bother him any more; the officers were

courteous and did not threaten him, “They use the opposite

approach, the: buttering-up type approach”; he didn’t tell

about the girl when first questioned because he: “was, try-

ing to search my mind for more of the information that

was lacking”, “. . . I wanted time to think”; ‘he bid the

bloody newspapers ‘to “get rid of the evidence”; later on

Tuesday night, November 17, he tore the brass top of a

_ ‘lead pencil. apart ‘to make a jagged instrument: and tried

to sever an artery in his arm; he lost some blood and

fainted twice; he had done this after one @f the police of.

_ « fieers told him his fingerprints were. found on the bloody

>

28a -

: hatchet, and related other incriminating evidence, and that ‘

they “had it on him” and he was never going to get out;

the next day he drew a picture of the field and he went

with the officers: io look for the body; he kept his weight

control pills in the basement of his’ home in Kansas City ;

. no one knew where they were; when he left.Kansas City

his pill bottle, which holds ten or fittoen, was more than fe

half full.

At the time of. the search of. the kuternobile- at Topeka

an officer removed a pill bottle ee. a pill from ap-_

-. pellant’s suitease.-

Appellant’s brother-in-law, ihe: lived at Marventiba tes-

tified appellant called him Thursday, ‘November 12, about

pheasant hunting and again on Saturday morning, Novem- |.

ber 14, saying something about having a flat tire and for -

_hini to go on hunting; appellant was supposed to ‘be there

‘ by noon but he next saw him Saturday night about 8:30;

". appellant had beer breath ‘but appeared sober; he asked

‘appellant what he had done and appellant said nothing; he

told appellant the police were looking for him; appellant ~

said he would go to,Kansas City to find out about ‘it; he

next. saw appellant Sunday night, intoxicated, and again

told him the police: were looking for him; he denied know-.

. ing anything ‘about the missing Negro girl; then the police

- eame up; at the, police station the FBI agent: advised ap: ;

pellant of his rights and that he could call a lawyer if. he

_ wanted to; the brother-in-law testified as to an incident in

July, 1964, when. appellant was very intoxicated at Marys-

_. yille just prior to a scheduled train run; he and his wife

attempted to.sober appellant up with black coffee; he made

| - the ran but later told them he had run the train from

‘before he inew anything. that was

Oe Wie aes

“happening; after being informed appellant had tried to

- take his life, he visited him at the jail; appellant seemed

A Topeka tavern owner testified appellant was in her

_“Sherpy” while at the tavern, pron 3 |

_ A laborer at the state printing plant: was, walking home

ing he was not a ‘Policeman; this was -an area near the _

home of Gladys Johnson. rabagat : |

ing girl at 8:06 a.m., November 14; he went to the neigh-

bor’s residence ‘from where the call had come; across the

- Two neighbors of appellant testified he had been spon

" neighbor, that he had a good reputation and they had le -

a ee

~ 80a

of 1 no “trouble; a fellow employee and former brother-in-

law stated appellant had a good work record bara a good

reputation among his fellow. employees.

A psychiatrist at the Menninger Fountiation, who: in

-January had been a member of the sanity commission for

appellant, examined him in March, 1965, and testified as

', to the result; a complete psychiatric and psychological .§ .. *

evaluation was made; there was no organic or neurological —

problem; no evidenge of definite disease was found; there ©

was no significant mental disorder and no diagnosis was

——-—nade;the examination indicated a fairly stable, emotion-

_. ally controlled, average individual; appellant. gave.a his-

tory of blackouts, all except: one being associated with

drinking; excessive drinking, among other things, | will

_ produce amnesia; a retrograde type amnesia could have

blotted out the memory of a heinous act; drunkenness ean

~ eause loss of perception and impair judgment to handle

unusual situations, depending on degree; appeljant. was

not. insane, he understood the difference between right and

wrong and knew certain acts were prohibited.

A psyehologist at Menninger’s administered a battery

of psychological tests to appellant. ‘The tests did not reveal

the presence of any. tendency toward sexual perversion or

-mauch seriously wrong in terms of personality integration.

By way of ‘rebuttal evidence for the prosecution the

police officer in question denied he had told appellant his

“fingerprints were found on the hatha and thet he was

“never going to get out.” . i :

’ Appellant urges as ground for seit ‘of f his ooavictidh

-_. that proper venue as to the murder offense was never

° established: in Shawnee county, inasmuch as there was no

a whet cupieet therein. He argues the sfate

Sia |

produced evidence the victim was last, seen alive in Wame-

g0 in Pottawatomie county and her. body was found in

_ Pottawatomie county; therefore the murder offensé could |

“be prosecuted only. in that county. > tage side tees

Section 10 of thé bill of rights to our Kansas constitu-

tion provides in Darts i. ho scincazs yp vent, ; |

. “Tn ‘all prosecutions, the accused shall be allowed to |

_ Sppear and defend in person or by counsel.” + 7 and

been committed...” she eae ve ee

This is implemented by the following statutes: ‘

_ “Offenses committed against the laws of this state

_ Shall be punished in the county in which the offense

is committed, except as may be otherwise ‘Provided by

law.” (K. S.A. 62-401.) eg. eee

“When a public offense has ‘been committed, partly

in one” county and. Partly in another, or the act or

the fatal blows were struck. gs

ie WY wa B, “32a

a I. ) hd /

1 date murder, that is, killing while engaged i ini the perpetration

Appellant was a in the information ‘with felony |

of a felony, namely, kidnaping. The jury was ‘instructed —

upon this type of. murder and appellant stands convicted

‘ thereof. Hence the kidnaping was an essential element of

_ the murder offense. Inasinuch as the initial abduction oc-

‘curred in Shawnee county and the, kidnaping was triable

there, venue on the murder charge, heeame Permissible |

. there under 62-404.

It mii be noteworthy that. the wonsval area in Dbitawat-

omie county where. the -vietim—was-last seen’ ‘alive other

than by her killer and where her body was found, is. so

situated it lies within five or six minutes driving distance

from three adjoining counties, including Shawnee, and -no ©

- more than fifteen, minutes from at least two others. A

- murderer should not -escape punishment because the exact’

place of his crime is concealed. :

The > Supreme Court of

wontronted w with

7 >——~“an identical factual situation where the same legal conten-

‘tion was made as here in State v. Wilson, 38 Wn. (2d) 593, .

231 P. 2d 288, cert. den. 342 U.S. 855, 96 L. ed. 644, 72'S. Ct.

8, ‘cert. den. 343 U. 8. 950, 96 L. ed. 1352, 72.S. Ct. 1044.

‘The defendants there were convicted of kidnaping in the.

first degree and murder in the first degree and the death

_ penalty: imposed. The facts were that the victim was kid-

naped in Clark county, Washington, ‘and a week later her

body was ‘found in ‘Skamania county, Washington, fifty-

five miles from the seene’ of the kidnaping. She had been *

eaten, cut behind her ear and sexually violated.

Death: was caused by carbon monoxide poisoning. The evi-

Erie 0G T eeiciieaat pov

‘The state of Washington has 4 constitutional provision

Fico ttecs place’ af trial wv identical to that quoted

ee es Oe ee

ee

- from our own bill-of rights and an implementing statute

~». identical to our 62-404. tear .

the body was found, present any bar to. the proseeu- e

tion for murder in Clark county.” (p. 599) ee :

We hold venue on the murder charge wag properly estab-

’ lished in Shawnee county. Kats oes OO

See, also, People v. Abbott, 47 Cal. 2d 362, 303 P. 24750. cae

_. She was erying wlien seen in appellai nt’s company in the

- field northwest of Topeka and appellant admitted to offi

Cie _:and; When taken rom its rightful guardian, is deeme

~* to have been taken without its consent as a matter of

law.” jae as i vise .

‘The jury here was later instructed in accordance with '

‘the foregoing and properly so. The evidence was sufficient

to support the charges, including the element of wilfulness,’

discharge. - fo “ | ye

Appellant next complains that the hatchet and other

items taken from his automobile were obtainable as @ result

of an illegal search and seizure and were improperly re-

ceived in evidence. He now argues. Ke was not.in his car —

‘when arrested in Marysville and: the officers had no right

to look into the car without a search warrant, At the time.

of.the later minute search of the cag when the articles were

removed, a search warrant had been obtained. No objection

was made at the trial to the reception of this“evidence and

in view ofthis, the contention might well -be disposed of

on the basis of the contemporaneous objection rule (K.'S.

ever, we need not so bottom our decision. Nor need we

dwell upon the proposition that a search which is a bona

. ‘fide effort to save life, weighed in the scales of human —

values, is a justifiable invasion of privacy and does not.

te an unreasonable search go as to seal off anything :

oe

ithin possible ambit of that effort, The record is replete,”

with clear and convineing evidence of express, voluntary,

;

intelligent consent by appellant to that initial search. The

J fi

- eonstitutional immunity from. unreasonable searches may.

be waived by consent to the search.

In Zap v. United States, 328 U. S, 624, 90 L. ed. 1477, 66

S. Ct: 1277, the rale is stated:” A tA isi

7

and the court committed no error in denying the motionto

A. 60-404). This rule does serve a valid purpose..How-

\

to autopsy. after the body had been Temoved to Topeka, .

Pictures in black.and white film were taken of the body at . aoe

The trial court carefully previewed these slides prior te

eir showing.to the jury and in doing so rejected some

that were offered, It limited the length of their showing by

, Projector while the coroner. was testifying. The slides were :

used by. the coroner to demonstrate depth of the wounds —

and type of blow inflicting them. Later, after the jury had

retired for its deliberations, the slides, along: with other |

exhibits; were, with permission of the court, taken into the

. We see nothing wrong in connection with the color slides,

They tended to illustrate material facts in the case, That

they were gruesome merely reflected reality—the shocking

nature of the killing. No error is shown in their use (see

_ State v. Turner, 193 Kan. 189, 392 P. 2d 863), Nordowe-

find abuse of judicial: discretion, as. contended,. in. per. ie Some

mitting the coroner's demonstration of the hatehet-during =

< “5

“os

oe The trial court excluded two- exhibits offered by aaah

lant. One was a picture of a man called Sherpy, an itiner-

ant seen in appellant’s company at a tavern Friday night,

| November 13, Appellant argues the photograph should

have béen received to show any possible facial resemblance —

between Sherpy and the appellant on the premise it may —

- have been Sherpy who was seen the next’ day with the girl.

The difficulty with the argument is there was ‘no foundation —

laid nor facts shown from which such an inference could be

drawn. Appellant testified the man who was with him in —

the car Saturday morning was a man he had never seen

before. There was nothing to connect Sherpy with the

abduction on Saturday morning any more than countless

other men whose pictures ¢ould have been produced. It was

not shown that the proffered exhibit had probative value

nor is it shown here there was error in its exclusion.

The other exhibit excluded was a copy of a psychologist’s

_Feport of examination of appellant. The psychologist was

present in court and testified at length as a witness’for .

appellant. Not only was he available to testify as to mat-’

ters covered in the report, he in fact did so except so much

thereof as amounted to. sheer speculation as to whether ©

appellant did in fact comihit the crime. Statements.of this

- nature would not have been admissible even if made -by

- the ik Sigal — ~_— as 8 a. ind ecese Sa

was correct.

Certain: ieatheniay proffered te appellant was exelnded.

o A Topeka pélies officer was not permitted to testify as to te

‘the ‘alleged request'on’ behalf of appéllant to have the pili

already mentioned analyzed. We «have discusséd ‘the —

propriety‘ of. the’ request so far as pretrial court: action

; ane needameraneri en a er

ig er

hw ee sta Oy

*

“

. é

.

{ .

’

“request as.a straw man at the trial; ted i Was

irrelevant and properly exelud Vat bis

The trial court: sustained: appellee’s objections to three

of perversion. This information " without, objection, /sub-

sequently elicited from. the psychologist who testified, in

view of which. error may not now be predicated upon the

as probative value: The court committed no error in sustain.

het

;

j

sition in a well-reasoned memorandum made part of the’ |

trial record, ruling in. effect Appellant was either guilty of -

ket

=

* trst: degree murder as chtirged or not guilty of any dearee

. of homicide. We approve the action taken. ..

Marder in the second degree is murder comilitted pur-

- posely. and maliciously, but without deliberation and pre-

meditation (K.-S. A. 21-402): What is commonly referred -

_ to as felony murder is defined as any murder committed

Ye ‘in the perpetration or any felony (K..S, A. 21-401). Ap-

- pellant was charged with this type of murder, the felony

being kidnaping in the first degree (K. S. A. 21-449), a

-erime involving violence, either actual or threatened. The.

defense was two-fold: That appellant did not commit the

acts, or if he did, he lacked the requisite intent by reason .

of his state of unconsciousness from drinking. 5

In State v. Kornstett, 62 Kan. 221, 61 Pac. 805, the de-

fendant was convicted of murder in the first degree. The ©

information in effect charged felony . murder. The defen-

dant attempted to ravish the victim, then choked ‘and beat

a struck her head against a tree and threw her in a well

twenty feet deep. The wounds inflicted caused death. The

trial court refused to instruct on any lesser: degree of

, homicide. This court stated:

“The charge of the court should be applicable and

limited to the facts in evidence, and where the testi-

mony shows beyond question‘that the defendant was

either guilty of murder in the first degree or innocent

of any offense, it is unnecessary to charge the jury as

to any degree of the offense other than murder in the

- first degree.” (Syl. J 7.)

In State v. Clough, 70 Kan. 510, 79 Pac. 117, this court

said: = at ' . .

ke . . it is not error for the trial court to omit’ in-

structing the jury as to any one, or all, of such lower

; degrees’ of crime included in the. charge, when the

evidence tends to establish the highest degree of crime

charged and does ‘Mot tend to establish guilt of any

lower degree of crime included therein,” ( Syl. 71.)

In State v. Roselli, 109 Kan. 33, 198 Pac: 195, the de-

fendant and a companion held up a store. While the Tob- -

bery was in progress, the companion killed the storekeeper.

Defendant’ was charged with murder in the first degree,

The defense. was an alibi. The court refused defendant’s —

request to instruct on second degree murder. Defendant’s

first degree murder conviction was affirmed, This court

committed, he was engaged in a robbery and the elements

of deliberation and premeditation, which must be utterly

absent .in second degree murder, were incontestably pres-

ent.

‘which i‘ can be said or inferred that appellant. did the kill-

ing purposely and maliciously but without deliberation and

homicide. The conclusion’ is inescapable the killin was

committed during the perpetration of the kidnaping. Ap-

pellant was either present in the course of the kidnaping

when the killing occurred (and mentally respensible) and -

40a |

guilty of first degree murder, or he was not present and,

therefore, not guilty of any degree of homicide. To have

given the instruction on the lesser offense would have per- \

mitted the jury to Speculate on a degree of homicide not —

in the case upon any theory.

‘Appellant’s complaint as to. the initial failure of the

transcript to reflect that in reading the instructions to the

_ jury the trial court stated all possible verdicts which might

be rendered has now been satisfied by a correction to the

transcript by the official court reporter. It appears the

jury was correctly informed by the court, both orally and

in written instructions submitted to it, as to all possible —

verdicts in the case including verdicts of not guilty, and

not guilty by reason of insanity, as.to both charges. ~~

_ Appellant urges that the sentences imposed by the jury.

are inconsistenf, repugnant and impossible to carry out.

The specious argument that execution .of the capital sen-

tence destroys. the effect of the sentence to life imprison-

ment warrants little comment. The jury was instructed to -

_ consider the offenses separately, which it manifestly did. »

. Each sentence. was legal and within the jury’s competence

to impose and each may be lawfully executed as adjudged.

Appellant urges error in the overruling of his motion —

for new trial. As grounds, in addition to that which has

_ already been discussed, he asserts insufficiency of evidence

to support the findings of. guilty. We need not labor the

matter. Forty-eight witnesses testified and over fifty ex-

hibits were received in evidence.. The seven year old vic- .

tim was abducted. Soon thereafter, appellant was seen

alone with her in a field near Topeka and later in the city

of Wamego. Identification was positive. The girl was hit

and chopped to death with a weapon found in appellant’s .

issue of his criminal awareness was, under appropriate

instructions, submitted. to the jury and resolved against

4ppellant all the safeguards of the law.. At trial, conysel

vigorously and ably prosecuted and just as vigorously: and

difficult hearing, acted with the utmost deliberation and

care to the end that a fair tril be had for all. We think a

, fair trial was had and the result must be upheld. —

42a

éharge by Gladys’ sities, going into considerable detail

as to the circumstances. It also appears the mother, Betty,

nad, while at. Liberal, charged another man with a §

Gladys but: there was no prosecution. 3

Although there may be question whether this’ ‘record is

‘properly before us for any purpose, nevertheless, since

this is a capital case, we have examined it.

_ We need-not detail the contents of that record. Suffice

_ it.to say it reveals no connection in any way between the

- two offenses. If the record of the Kemp proceeding could

be said to cast doubt upon the credibility of Betty as a

witness or upon her character-as a- good mother to Gladys,

then the answer would be that the conviction of appellant

does not rest in any way upon either. Appellant seems to

argue that if he had had more time to prepare his defense,

' or that if he had had an attorney appointed promptly upon

his request, he might have known about the Liberal case ©

prior to trial. Here again, the answer would have to be

the same—no connection except coincidence of the victim.

‘One further matter, not affecting guilt or innocence, re- :

mains: The amount of compensation for appellant’s court-

appointed counsel. K. 8. A. 62-1304 provides such counsel

“shall receive a reasonable fee for his services, which shail

be set by the trial judge and the same shall be paid from

the general fund of the county -in which the action was

tried. 3? : rc

Counsel made application for payment. of his services

in accordance with this statute, documenting it with a ree-

ord of the time spent in preparation and trial, and of ex-

_ pense. incurred.. Evidently the matter was’ considered: by

the four district judges of Shawnee county en banc and a

fee of $2,500.00 with expenses of $1, 087.55 was allowed. . We

are _ to increase this amount.

| appointed counsel, there may be instances of some sacrifice |

-but fortunately, any sacrifice now is not. as before

when members of the-bar were called upon, as a part of ;

their professional obligation, to serve without ‘compensa-

tion or for a token amount. ‘In the case at bar a substantial

The judgment and sentences are affirmed.

APPROVED ‘BY THE Court.