State v. Barnes
| Decision Date | 09 November 1968 |
| Citation | 446 P.2d 774,202 Kan. 21 |
| Parties | STATE of Kansas, Appellee, v. Willie J. BARNES, Appellant. No 44720. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In a prosecution for murder the record is examined and it is held, (1) the evidence was sufficient to support a conviction of murder in the second degree; (2) there was no prejudicial error in the instructions of the trial court, and (3) the bailiff was properly sworn and instructed as to his duties.
Leonard D. Munker, Wichita, argued the cause and was on the briefs for appellant.
Russell E. Grant, Deputy County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., Keith Sanborn, Couty Atty., and Reese C. Jones, Deputy County Atty., were with him on the briefs for appellee.
HATCHER, Commissioner.
This is an appeal from a judgment and sentence on a conviction of murder in the second degree.
The defendant was a part time employee of the Kitchen Club located in Wichita, Kansas. It would appear from the record that the club was a beer joint where the drunks congregated after the closing hour for legitimate taverns and put on a real brawl.
The state presented evidence in the form of testimony and exhibits which established that the following events occurred on October 9, 1965. The deceased, Calvin Franklin, went to the Kitchen Club located in northeast Wichita with a friend in the early morning of October 9, 1965. Willie J. Barnes, the defendant, was there performing some of the duties of a helper. A fight occurred between the deceased and a man named Donald McDonald. The deceased drew a small .22 calibre pistol and fired several times in the direction of McDonald. There was at least one other gun being fired in the establishment at the same time. Four people were injured by at least two different calibre bullets. It appears that there were at least five people at the club with pistols.
At the time the gun was being fired by the deceased, McDonald struck him with a stool top knocking him down. After the deceased was hit the gun disappeared from his hand. It was not found by the police. While the deceased lay on the floor defendant took a gun, proceeded from behind the bar approaching the deceased from the direction of his feet and shot him twice, one shot striking him at the waist line below the left rib cage traveling upward and to the right lodging almost exteriorly near the right nipple area. Another shot struck him in the left buttocks lodging near the spine. The defendant then left the premises and went to his home. Before he was arrested the defendant discarded his gun which was purported to be a .38 calibre Smith and Wesson. It was not found by the police.
The defendant was charged with murder in the first degree and a trial to jury resulted in a verdict of murder in the second degree.
Before considering the alleged errors presented by appellant it should be suggested that we have noted the state's objection to consideration of the questions because of procedural omissions. However, we are of the opinion that the interests of the parties will be best served by a consideration of the appeal on the merits.
The appellant first contends that the trial court erred, as a matter of law, in instructing the jury as to first and second degree murder because the evidence was not sufficient to establish the elements of such offenses.
In addition to the facts heretofore stated there was additional evidence. An employee of the club who was working behind the bar with the appellant testified:
The witness also testified that the appellant was shooting but he could not tell what at.
Another witness who was present at the brawl testified:
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