State v. Andrews

• Decision Date: 10 December 1960
• Docket Number: No. 41984,41984
• Citation: 357 P.2d 739,187 Kan. 458
• Parties: STATE of Kansas, Appellee, v. Lowell Lee ANDREWS, Appellant.
• Court: Kansas Supreme Court

Page 739

357 P.2d 739

187 Kan. 458

STATE of Kansas, Appellee, v. Lowell Lee ANDREWS, Appellant.

No. 41984.

Supreme Court of Kansas.

Dec. 10, 1960.

Rehearing Denied Jan. 25, 1961.

Syllabus by the Court.

1. Where defendant in a prosecution for murder in the first degree has entered a plea of not guilty by way of insanity, and appeals after conviction of the crime urging that the court change its former rules as to responsibility for criminal acts because of defendant's insanity, the question is carefully considered and the court adheres to its former decisions stating the rules of law in this and almost all other jurisdictions upon this subject.

2. On an appeal from the conviction of murder in the first degree, certain assignments of alleged trial errors, all more specifically set out in the opinion, having been studiously considered, it is held: The rights of defendant were fully protected by the trial court and no error in the trial has been discovered.

Harry Hayward and Buford E. Braly, Kansas City, argued the cause, and were on the briefs, for appellant.

Samuel J. Wells, Asst. County Atty., and Robert H. Bingham, Kansas City, argued the cause, and John Anderson, Jr., Atty. Gen., Robert Hoffman, Asst. Atty. Gen., and Robert J. Foster, County Atty., were with them on the briefs, for appellee.

JACKSON, Justice.

In the court below, the appellant was charged with three counts of first degree murder in that it was alleged that he shot and killed his mother, his father and his sister. These astounding matters were all alleged to have happened at the same time. The appellant-defendant pleaded not guilty by way of insanity at the time of the acts charged. Defendant was duly tried upon the charges in the information and the jury found him guilty of murder in the first degree as to each of the three counts, and further assessed the death penalty upon each of the counts. The district court having approved the jury's verdict and sentenced the defendant to death, he now appeals to this court.

In such an appeal, this court will not feel itself confined by technical rules and would notice any 'plain error' whether specified by defendant or not. However, it would appear diligent counsel for defendant have specified every error which conceivably might be thought to exist.

Another facet of the jurisdiction of this court will be noted before turning to the merits of this appeal. In a similar case, State v. Miller, 165 Kan. 228, at page 239, 194 P.2d 498, 506, the late Mr. Chief Justice Harvey said:

'We are neither authorized nor have we any disposition to debate the question of the wisdom of capital punishment. The legislature determines the policy of the state in that regard and enacts statutes which the courts are bound to follow. The trial court followed the statute in this case.'

On November 28, 1958, the permanent home of defendant Andrews was at the family residence of his father and mother on a suburban farm in Wyandotte county. The address of the home was 6104 Wolcott Drive. Besides the parents and defendant, the family included defendant's sister Jennie Marie. On the above date, defendant was eighteen years of age and was in his second year of study at the University of Kansas. We have been unable to find the exact age of the sister in the record but, from the record, she would appear to have been near the age of the defendant. She was attending a college in Oklahoma.

The 28th of November, 1958, seems to have been part of the Thanksgiving vacation at the University, and the defendant was at home with his family. At about seven o'clock in the evening, without any disagreement with any member of his family, the defendant walked out of the kitchen of the home, up the hall toward his own bedroom and noticed the rest of the family sitting in the front room watching television. Defendant proceeded to the bedroom, strapped on his Ruger .22 caliber revolver and took his semi-automatic .22 caliber rifle in his hands. He then went to the door of the front room and without saying anything, as far as the record shows, opened fire with the rifle upon his family. He shot his mother, his father and his sister in that order. Both the mother and sister were killed in the front room; the father, although wounded, got up and tried to escape to the kitchen. The defendant pursued his father and finished the father off with the revolver.

It would appear that before the shooting, defendant had raised the window in his own bedroom. After the shooting, defendant removed the screen from this same window and took the contents of dresser drawers and the purses of his mother and sister and scattered them about. The purpose of all this was to simulate the conditions which might appear if an outsider had attempted to rob the home.

Following these acts, defendant dismantled his guns, put them in his father's automobile and drove toward Lawrence taking the state highway and not the turnpike. There is some indication in the record that he avoided the turnpike for fear of recognition.

On approaching the bridge across the Kansas river, defendant stopped near the north end, took the dismantled guns to the bridge, and threw them over the east side which would be over the face of the low dam and into the swift water. He then proceeded in the automobile to his rooming house, where he got his typewriter, making certain to contact both his roommate and his landlady. It would appear that he made these contacts with the purpose of establishing an alibi. Defendant told his roommate that it had taken him more than two hours to drive from his home to Lawrence and that the roads were very slippery. Defendant then went to a picture show. After the show, defendant proceeded to a gasoline station in north Lawrence where he purchased gasoline and apparently made certain that he was recognized. It is suggested that defendant was attempting to strengthen his alibi by making certain the time he left Lawrence for home.

At about 1:00 a. m. November 29, 1958, defendant called the Wyandotte county sheriff's office and reported that the other members of his family had been killed. The county officers immediately came to the scene and found the bodies of defendant's father, mother and sister. The county coroner was called by the sheriff's officers and found defendant rather unconcerned about funeral arrangements for his family. The coroner ascertained that the family were members of the Baptist church of which the Reverend Mr. V. C. Dameron was the minister. Acting upon this information, the coroner telephoned the minister. The sheriff's officers were evidently suspicious concerning defendant and transported him to the sheriff's office. They were immediately joined by the Reverend Mr. Dameron, who had arrived at the office in response to the telephone call and who either asked or agreed to talk with defendant alone. The sheriff consented to this private conference at defendant's request and provided a private office where it could be held.

Following the conference, the minister came to the door of the office and told the officers that the defendant wished to make a statement. Whereupon, the record shows that the county attorney advised defendant of his constitutional rights and that he did not have to make any statement; and thereafter in response to the questions of the county attorney, with the minister and certain officers from the sheriff's force present, defendant dictated to a secretary, and then read and initialed the pages of a written confession detailing in large measure if not all of the facts which have been recounted above.

The written confession is not set out in the abstract, but the counter abstract shows that it was received in evidence at the trial without any objection upon the part of the defendant. The counter abstract gives only a brief summary of the confession, but it is established that all of the above facts are true, and the defendant makes no contention to the contrary upon this appeal.

The record is silent as to the exact time of defendant's arraignment, but it would appear to have taken place early in the morning of November 29, and it would appear that one of defendant's present counsel was appointed to represent him. Later it appears, this lawyer and the defendant's other counsel were privately employed by defendant.

On February 20, 1959, defendant through counsel moved the district court to appoint a commission to ascertain whether defendant was competent to stand trial. The test of such competency differs from that as to the responsibility for a crime charged against an accused, see State v. Severns, 184 Kan. 213, syl. No. 2, 336 P.2d 447. The court promptly granted defendant's motion and appointed three qualified psychiatrists of the Kansas City area to examine defendant and report. The commission reported defendant competent to stand trial. Before the examination of defendant by the commission, defendant demanded the right to be represented by counsel before the medical commission. The court denied this request, and the same is the first matter mentioned in defendant's brief. We find no error in the court's ruling. The commission was to pass upon a medical question at defendant's request, and there is no evidence that they investigated any legal question relating to the criminal acts of the defendant unless the matter of sanity be such a question. The cases of State v. Oberst, 127 Kan. 412, 273 P. 490; State v. Wassinger, 131 Kan. 316, 291 P. 743; and State v. Seward, 163 Kan. 136, 181 P.2d 478, and all cases which have come to our attention, fail to show any deprivation of counsel to this defendant by the court's ruling as to the hearing before the sanity commission or at any other time.

Defendant objects to the fact that on voir dire in choosing the jury at the trial, defendant was not allowed to advise the jurors that, if acquitted by reason of insanity, defendant would be sent to the state hospital for...