Kinsey v. State

• Decision Date: 08 March 1937
• Docket Number: Criminal 850
• Parties: BILLIE KINSEY, Appellant, v. STATE OF ARIZONA, Respondent
• Court: Arizona Supreme Court

65 P.2d 1141

49 Ariz. 201

BILLIE KINSEY, Appellant, v. STATE OF ARIZONA, Respondent

Criminal No. 850

Supreme Court of Arizona

March 8, 1937

[Copyrighted Material Omitted]

APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment affirmed.

Mr. V L. Hash, Mr. C. H. Young, for Appellant.

Mr. Joe Conway, Attorney General, Mr. W. E. Polley, Assistant Attorney General, Mr. Harry Johnson, County Attorney, and Mr Earl Anderson, Deputy County Attorney, for Respondent.

OPINION

LOCKWOOD, J.

This is an appeal by Billie Kinsey, hereinafter called defendant, from a judgment and sentence pronounced upon a verdict of a jury finding her guilty of murder in the second degree. The facts of the case, taken in the strongest manner in support of the verdict, as under our oft-repeated rule we must take them, may be stated as follows:

Odessa Ball, hereinafter called deceased, was a young woman about twenty-one years of age, residing at Coolidge, Arizona. About the 21st of April, 1936, she left her home to visit a girl friend, named Martha Jones, residing in Buckeye. She was accompanied from Coolidge to Buckeye by three of her friends, and arrived at the latter place about midnight, where she remained with her friend Miss Jones, while her companions returned to Coolidge. She stayed at the Jones house from April 21st to April 27th, when she left via an eastbound train, saying she was returning to Coolidge. During all of the time that she was at the Jones house she slept with her friend. Both the girl and her mother observed deceased closely and she appeared to be in good health and high spirits, without any indication of ailment or other injury, Miss Jones testifying that the night previous to her departure from Buckeye she was not flowing, hemorrhaging, or suffering apparently from any inward condition. Deceased arrived in Phoenix on the early morning train, Monday, April 27th, and was seen at the depot by a relative, and shortly after leaving the depot she met a friend at First Avenue and Washington Street, and then went on west on Washington Street. Both parties she met testified that at that time she appeared to be healthy and in good spirits. About 10:30 the same morning, Fay Plummer, a friend of defendant, went to the latter's house for some purpose, and was then informed by defendant that she had a patient. Miss Plummer did not at that time see the patient, but in the afternoon of the same day returned to defendant's house. On this second visit, the defendant told her that she (defendant) was going to the store, and if her patient wanted anything, she would like Miss Plummer to attend to it. While the defendant was gone, a girl whom Miss Plummer did not know at that time came into the room, walked around a little, and then went back and lay down on a bed on the sleeping porch. The girl seemed to be nervous and restless and acted as if she was in considerable pain. About this time Miss Plummer had a conversation with the defendant, and the latter remarked that "she thought the girl was about ready to do business and that she was a hard case." Miss Plummer then left and did not see the girl again until Thursday, when she identified the body of deceased, which was at the time in a mortuary, as being the girl whom she saw at defendant's house on the 27th of April. It further appeared that between 11 and 12 o'clock P.M. on Tuesday, April 28th, Jap Kinsey, defendant's ex-husband, together with two other men, went to defendant's house and found a girl there apparently in great pain and unconscious, with the defendant working with her. These men took the girl to the Good Samaritan Hospital and placed her in the care of a nurse, where she died about thirty minutes later. They gave no information to the staff at the hospital, except that some of the girl's relatives would call later, and shortly after her death, a friend of deceased by name of Lois Bowden did arrive at the hospital and identified her. She testified she was one of the party who went to Buckeye with her on the 21st; that about 10 o'clock the evening of the 28th she received a call from some unknown party in Phoenix, who requested that she come to the hospital immediately to see deceased. The authorities were immediately notified and commenced a search for defendant and her former husband, Jap Kinsey. They went to her house on Wednesday, the 29th, but did not find her, but finally located her and her ex-husband in a cabin at an auto court some eight or ten blocks away. When they knocked at the door, Kinsey opened it after a little delay and informed the officers that he was alone, but on searching the premises they found defendant hid in the bathroom, and immediately placed her and Kinsey under arrest. The cabin was searched and, among other things, the officers found a bread box containing a number of surgical instruments, which defendant admitted belonged to her, several of them having upon them stains of fresh blood. They also searched defendant's own house, and found therein a number of towels and sheets, which indicated they had been freshly laundered, and also found in a garage on defendant's premises a pad and some cotton upon which were some fresh blood stains. Defendant was brought to the county attorney's office shortly after her arrest and was questioned by the county attorney, and her statement taken down by a court reporter. During this examination she denied that she knew deceased, or that the latter had ever been to her house, and also denied that Kinsey and the other two men had taken deceased from her house to the hospital. Some time after she was again taken to the county attorney's office, and made a second statement in which she admitted her first one was untrue in many particulars. She then claimed that deceased came to her house Tuesday, the 28th, about 9 o'clock in the morning, and asked if she was a nurse, telling her that she (deceased) had used a curling iron and a hat pin to produce an abortion, and that she needed assistance. Defendant stated at that time that the girl was hemorrhaging profusely, with blood all over her stockings, and shoes. She said she took the girl in to her room and made an examination, and removed a small piece of placenta, which seemed to relieve her for a time, but that about 5 or 6 o'clock she had a severe hemorrhage, and from that time gradually sank until she was taken to the hospital, where she shortly afterwards died. An autopsy, which was performed about noon April 29th, showed conclusively that the cause of the death of Odessa Ball was a hemorrhage brought about by an abortion. It also showed that on the posterior wall of the uterus there were numerous abrasions, cuts, and lacerations, which, in the opinion of the examining physician, were caused by some sharp cutting instrument, probably a curette. Among the surgical instruments found in the defendant's possession, as aforesaid, were a curette and several speculums, which had fresh blood on them at the time they were seized. He further testified that there was nothing to indicate that an abortion was necessary to save the life of deceased, and that, in his opinion, it had been performed anywhere from a minimum of twelve to a maximum of thirty-six hours before the time of her death.

There are some eleven assignments of error, which we shall consider in the order that seems most advisable. The first is "for error of the court in permitting questions to be asked of the prospective jurors over the objections of defendant." This assignment is obviously insufficient, under rule 12 of this court, in that it does not point out distinctly the particular ruling complained of. We might well, therefore, decline to consider it. Midkiff v. State, 29 Ariz. 523, 243 P. 601; DeMille v. State, 43 Ariz. 551, 33 P.2d 280. But even if we attempt to consider it and accept the argument in defendant's brief as pointing out the errors complained of, our attention is called to only eight places in the examination of jurors where it is alleged improper questions were asked. In the first instance, the county attorney reframed the question and counsel for defendant admitted the question, as reframed, was correct. In the second, no objection to the question appears in the record. In the third, the court excused a juror because it evidently felt he was disqualified on the question of circumstantial evidence. The exclusion of a juror by the court, even though erroneous, is of itself never a ground for a reversal, for the defendant is not entitled to have his case tried by any particular juror, but merely by twelve who are properly qualified and impartial. The fourth refers to the questioning of the juror C. B. Davis. The original question was framed and reframed, and as finally answered by the juror was proper. In the fifth, the objection was sustained by the court. In the sixth, seventh, and eighth, no objection was made. We find no reversible error in the examination of the jury.

The next assignment of error presents a more serious question. As we have said, defendant made two separate statements in the office of the county attorney, which were taken down by the official court reporters, E. W. Powers and H. R. Larson, and thereafter transcribed and offered in evidence; the first statement being marked as "State's Exhibit E," and the second as "Defendant's Exhibit 2." On the state's case in chief, Powers was called as a witness on behalf of the state, and testified to his position as official court reporter and qualifications as such a reporter. He then said that he took a statement of the defendant in the office of the county attorney, and in the presence of the latter and of the sheriff of Maricopa county that this statement, being the...