State v. Pyle
| Decision Date | 09 May 1936 |
| Docket Number | 32608. |
| Citation | 57 P.2d 93,143 Kan. 772 |
| Parties | STATE v. PYLE. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
In an appeal from a judgment upon conviction of murder in the first degree, where the homicide occurred as an incident in the perpetration of the crime of robbery, the record examined and held:
1. The conspiracy to commit a robbery, to conceal the crime, and dispose of and divide the spoils of the robbery, were sufficiently established to render competent the testimony concerning statements of the co-conspirators after the murder and robbery were committed.
2. The demurrer to the state's evidence was properly overruled.
3. A belated instruction given after the jury had deliberated on their verdict for two days without reaching a verdict considered and disapproved, but held to furnish no basis for reversible error under the circumstances stated and authorities cited in the opinion.
Appeal from District Court, Stafford County; Ray H. Beals, Judge.
Harry Pyle was convicted of murder in the first degree, and he appeals.
Don Shaffer, of Hutchinson, for appellant.
Clarence V. Beck, Atty. Gen., Earl B. Swarner, Asst. Atty. Gen., and C. W. Slifer, Co. Atty., and Robert Garvin, Special Prosecutor, both of St. John, for the State.
Harry Pyle was convicted of murder in the first degree for alleged participation in the killing of August Reiter on the night of December 23, 1934.
The murdered man was one of two bachelor brothers who resided on a farm in Stafford county about a mile and a half southwest of a place called Willinger filling station and about five and a half miles northeast of the city of Hudson. August and his brother Otto were wealthy farmers. They had $24,000 in government bonds buried near their home. The fact that the brothers possessed bonds was one of common knowledge in that locality, owing to the failure of a bank in which they had formerly kept their bonds.
John Schriner was an elderly tenant farmer, also a bachelor, who resided alone on a farm about half a mile south of the Reiter farm.
Harry Pyle and his son "Babe" Pyle had their habitation in a garage in the west part of Hutchinson. It had a dirt floor and was papered with card board. They were on intimate terms with one Lacy Cunningham, of Dodge City, who professed to be able to dispose of stolen bonds. In July, 1934 defendant and Cunningham discussed the subject of a large amount of bonds "that could have been got" a short time before. In their conversation, mention was made of a Willinger filling station, and of bachelors.
On December 17, 1934, defendant sent a telegram to Cunningham at Dodge City, which read, Cunningham replied by wire, "Tomorrow morning." Accordingly, next morning Cunningham arrived at Pyle's place in Hutchinson and stayed there two or three days. During part of that time, defendant's son "Babe" Pyle was in jail on a charge of passing "hot" checks. In the course of conversations between defendant and Cunningham mention was again made of the Willinger filling station and of bachelors, and that any farmer who was getting "allotment" money would probably have some money.
During Cunningham's stay at Pyle's place in December, 1934, defendant's son Alan Pyle, otherwise called "Babe" Pyle, got out of jail and was present at further conversations between defendant and Cunningham, and on occasion participated in them. The transcript of Cunningham's testimony, in part, reads:
"Q. At any time that morning was anything said about bachelors? * * * A. Well, they [Harry and Babe Pyle] said something about that they lived a mile west and a mile south of the Willinger filling station.
Q. Who lived there? A. Bachelors. * * *
Q. The bonds conversation was the only conversation you had about bonds--the one you had in July or August? A. Along in July or during that time.
Q. And at that time what was said about it? Was there anything said about how many bonds? A. That seventy thousand dollars' worth is about the part of the amount that I ever heard.
Q. You knew one of the Reiter's personally, didn't you, Mr. Cunningham? A. Yes, sir. * * *
Q. Before you had these conversations with the Pyles that you have told about, did you know or had you heard a rumor that these Reiters had some bonds? * * * A. I think most everybody has knowed that. * * *
Council for Defendant: Wait a minute. I move to have it stricken out.
Q. Now did Harry Pyle ever say anything to you about your going in on a hijacking deal? A. Yes.
Q. About when was that, Mr Cunningham? A. About the second day I was down.
Q. Now, tell the jury as near as you can what he said about hi-jacking or what you said. A. Well, he said we was a couple of chumps--that there was a fellow lived in Hutchinson been hi-jackin' fifteen years and never got in a crack. * * *
Q. What did you say to that? A. Well, I told him I was not--I was too old a man to go into that kind of business, and I was not going to have anything--any hand in any holdup. * * *
Q. Was there anything said about bachelors? And where they lived? A. Only what I have stated.
Q. Only what you have stated? A. Yes, sir, as near as I remember. * * *
Q. Was anything said about a quick payoff? A. Yes. Alan spoke about it I could get a quick payoff. * * *
Q. Was anything said about disposing of bonds by you? A. Yes.
Q. What was said about that? A. Well, I said I could get a contact. * * *
Q. Who did you say that to? A. I think to Harry.
The Court: Harry Pyle, the defendant, you mean? A. Yes, sir."
During Cunningham's stay at the Pyle garage, Babe Pyle said he intended to get a "hot" car to pull a job.
On Friday, December 21, Cunningham took defendant to Garden City to get defendant's automobile which his son, Babe, had left there. En route they halted at the farm home of one Roy Riley, some miles south of Lewis, with whom one "Bud" Richardson, sometimes called "Monk" occasionally stayed. Before leaving the Pyle garage, Babe said to defendant that he had no gun, and defendant replied that his was in a grip by the bed. As defendant and Cunningham journeyed on their way they had a conversation:
"Q. Anything said about 'Babe' Pyle on the road? A. Yes.
Q. Tell the jury. A. We'd gotten out of town about fifteen miles and I told Harry that I was scared to death of 'Babe'--he was so crazy and wild, and he said, 'Maybe you'd better turn around and go back,' I says, 'I'll sure do it, if you want to go back,' and he says, 'No, I've got to go get my car', and so we went on.
Q. Was there anything said at that time about whether you and Harry Pyle should be out at night if a job was pulled? * * * A. I think yes. * * *
Q. What? A. We was foolish to be out that time of night if something happened.
Q. Happened where? A. Any place. * * *
Q. You testified in the preliminary hearing in this case, didn't you, Mr. Cunningham? A. Yes, sir, I testified in two hearings.
Q. Yes. Now, to refresh your recollection, didn't I ask you this question, to which you gave the following answer * * *
Q. Didn't I ask you this question 'Didn't you tell him--say to him that if Alan was going to pull this job down by Hudson that we were damn fools for being out that night where we couldn't account for ourselves? Didn't you tell him something of that kind? A. Yes, sir; as near as I remember.
Q. And is that the truth? A. That's about the conversation."
Bud Richardson was not at home, so the two men drove on to Kinsley where defendant met Bud Richardson, and he and defendant had several private conversations until a late hour that night. After midnight Cunningham and defendant drove to Dodge City, finished the night there, and on Saturday they proceeded to Garden City, where defendant obtained his own car. Cunningham then returned to his home. That same night defendant returned to Dodge City and slept in Cunningham's bed, and left for Roy Riley's place shortly before noon next day, Sunday, December 23, 1934. Cunningham's testimony continues in part, thus:
"Q. At any of these conversations you had with Harry Pyle before the Sunday of the murder, did Harry Pyle say anything about that he needed money to keep 'Babe' out of jail? A. Yes, he told me that.
Q. What did he say about that? A. Well, he said that 'Babe' had cost him lots of money and was still costing him, and he guessed he'd go to the penitentiary now on account of the hot checks.
Q. Do you remember where you were when he told you that? A. I believe in his house.
Q. That was while you were down there on this trip that you told about? A. At Hutchinson, yes, sir. * * *
Q. Mr. Cunningham, I'll ask you whether at any of the conversations that you had with Harry Pyle there was anything said as to whether he would notify you if anything was pulled in Stafford county? * * * A. Yes. * * *
Q. What did he say about that? A. Well, so near as I can remember it was said something about Dox Witt and bachelor brothers or something to that effect, and I said, 'Well, don't figure me in on anything in Stafford county.'
Q. Did you tell him why? A. On account of the trouble that I had had. * * *
Q. What did he say? A. Well, I believe he said he'd let me get in the clear--something like that.
Q. Do you remember where that conversation occurred--when he told you that, Mr. Cunningham? A. No, I really couldn't recall just when that was.
Q. Well, was it during this week preceding the murder? A. Yes."
The foregoing may serve to portray the general background of the tragic violence which occurred the next Sunday evening in the homes of three peaceful farmers in...
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