State v. Schoenberger
| Citation | 216 Kan. 464,532 P.2d 1085 |
| Decision Date | 01 March 1975 |
| Docket Number | No. 47572,47572 |
| Parties | The STATE of Kansas, Appellee, v. Jim SCHOENBERGER, Appellant. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court
1. The exclusion of witnesses from the courtroom during the trial of a lawsuit rests within the sound discretion of the trial court.
2. Where a seasonable motion has been made to exclude the witnesses and there are no exigent circumstances necessitating thir presence in the courtroom, we believe the better practice is to sustain the motion.
3. As a general rule it may be said that where the defendant has not retreated from or sought to avoid an affray but has entered into the combat willingly, he is in no position to invoke the doctrine of self defense. However, even where the conflict is mutual an instruction on self defense should be given where it fairly comes within the range of the evidence.
4. An instruction concerning an included offense is required to be given only where it is clearly called for by the evidence and where the jury might reasonably have convicted the accused of a lesser crime had it been instructed with respect thereto.
5. The record is examined in an action in which the defendant was convicted of aggravated assault and for reasons given in the opinion it is held the trial court did not err (1) in overruling a motion to exclude the witnesses from the courtroom, (2) in failing to define the word 'intentionally', (3) in refusing to instruct on self defense and (4) in rejecting a request to give a lesser included offense instruction.
Thomas C. Boone, Hays, argued the cause and was on the brief for appellant.
Robert L. Earnest, Sp. Asst. County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Michael S. Holland, County Atty., were with him on the brief for appellee.
This appeal emanates from a conviction of aggravated assault under K.S.A. 21-3410 and the imposition of a sentence of from one to ten years.
The incident giving rise to the criminal charge occurred October 13, 1973, during a street fracas in Russell, Kansas. Two groups were involved, three young black brothers on one side, members of the Murphy family, and the defendant and his friend Leslie Rumback, both white, on the other.
By way of background, the defendant and Rumback had been engaged in working on the defendant's car earlier in the day. After completing the job that evening they purchased a pack of beer and drove into the country to test the car. They returned to Russell somewhere around 10:30. At this time George Murphy, who was sixteen years of age, was driving around town with his girl, who was fifteen. According to George, the defendant and his companion began to follow him, and one of them threw a bottle which hit his car. George drove home, followed by the two men, and told his two brothers, Gregory and Edward, what had happened. Profanities were yelled back and forth, it being disputed as to who initiated the uncomplimentary name calling.
After the exchange of obscenities the three Murphys decided to go out and talk with defendant and Rumback to find out what they wanted. In the interest of prudence, they provided themselves with wine or coke bottles. The defendant and his friend repaired to the former's home where Schoenberger procured either a butcher knife or a steak knife and Rumback, a knife with a broken point.
Apparently the two sets of putative combatants began looking for each other, although the record is somewhat vague as to their movements up to the time the Murphys drove their car around a corner, pulled over to the curb and stopped. At this juncture the Schoenberger car was following the Murphy car and it, too, pulled around the corner and over to the curb where it came to a stop behind the Murphys' vehicle. All occupants left their cars, Schoenberger and Rumback with knives, and at least two of the Murphys with bottles.
As the defendant emerged from his car, according to the Murphys, he said something to the effect that 'We are going to spill some niggers' guts tonight.' Schoenberger denied saying these exact words. He phrased what he said this way: 'It looks like we are going to have to fight some niggers.' From this point on there is some conflict in the testimony as to what occurred. However, it appears there was little if any physical contact between members of the groups except as between the defendant and Edward Murphy, and there are contradictory versions of that encounter. Nevertheless, the evidence is persuasive that Schoenberger went after Edward Murphy with knife in hand, made several 'swipes' at Edward which were sidestepped, and was restrained only when Edward was able to grab hold of the defendant's hand which held the knife.
The appearance of George Murphy with a loaded double-barrelled shotgun, which he had run home to pick up, put an end to the donnybrook. Schoenberger and Rumback retired from the scene in haste while the Murphys, after hurling a bottle against the defendant's car, repaired to the police station.
Four points of error are urged. First, it is said the trial court erred in overruling the defendant's motion to exclude the witnesses from the courtroom during the trial. In support of this motion, defense counsel informed the court that conflicting stories were told at the preliminary hearing and he thought the witnesses would give conflicting accounts at the trial.
This court adheres to the generally prevailing rule that the exclusion of witnesses during trial rests within the sound discretion of the trial court. (See State v. Guffey, 205 Kan. 9, 15, 468 P.2d 254, and authorities therein cited.) Restating this rule in State v. Theus, 207 Kan. 571, 485 P.2d 1327, we said:
'Generally speaking, the question of whether to exclude witnesses or not, and what exceptions may be made, is discretionary with the trial court in the absence of a showing of prejudice. . . .' (p. 577, 485 P.2d p. 1332.)
Our attention has not been called to any prejudice resulting from...
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