State v. Asbell
| Decision Date | 07 November 1896 |
| Docket Number | 10587 |
| Citation | 57 Kan. 398,46 P. 770 |
| Parties | THE STATE OF KANSAS v. MARION ASBELL |
| Court | Kansas Supreme Court |
Decided July, 1896.
Appeal from Labette District Court Hon. A. H. Skidmore, Judge.
AFFIRMED.
Judgment affirmed.
W. B Glasse, J. H. Crichton, and J. D. McCue, for appellant.
A. B Switzer, County Attorney, and Kimball & Osgood, for the State.
OPINION
Marion Asbell was convicted upon a charge of the murder of his wife at their home in Labette County on January 29, 1896, and from the judgment of conviction he appeals. They were married nearly two years before the death of Mrs. Asbell, and during that time had resided upon a farm which was situated about four miles from Chetopa. Each of them had been previously married, and by the first marriage the wife had two children living at the time of her death, named Maggie Whitehouse, about 17 years old, and Carson Whitehouse, whose age was about 15 years. By her marriage with the defendant she had one child, which was nearly 11 months old at the time of her death. Maggie made her home with the defendant after his marriage with the deceased, but the testimony tends to show that Carson's presence was not agreeable to the defendant and that prior to the marriage it was agreed that he should not live in their home. He lived in a number of places, and it appears that his conduct was such as to give his mother much concern and worry. Testimony was offered tending to show that previous to the defendant's marriage to the deceased he had had sexual intercourse with Maggie, and that illicit relations between them continued until the death of his wife; that, as a result of these relations she became pregnant, and the defendant took her to a doctor, where an abortion was produced; that, within a few months after their marriage, the wife suspected improper relations between her husband and Maggie, and at one time, and for this reason, some steps were taken toward obtaining a divorce, but the effort was abandoned. There is testimony to the effect that the conduct of her husband and daughter caused her great anxiety, and some also that she was contemplating the commencement of legal proceedings against them as soon as sufficient proof of their wrongdoing could be obtained. She was also worried by her son, who had been living with the father of the defendant, where he was charged with purloining money, and on returning home the day previous to the death of his mother, had a difficulty with the defendant and was ordered to leave the premises and not return again.
On the morning of January 29, 1896, Mrs. Asbell arose early and assisted Maggie in preparing breakfast, but she declined to eat any, and while the defendant and Maggie were eating she was bowed down, holding her head in her hands, and was apparently in a troubled and despondent state of mind. On that morning she asked the defendant for a horse and buggy with which to go to Oswego, the county seat, and also to one of her brothers who lived about six miles distant, but both of her requests were refused. He gave the horse and buggy to Maggie with which to go upon an errand, and, taking another horse, he rode out to his work upon the farm. Maggie returned home about 10 o'clock and found that her mother was missing and that the baby had been placed at the window and hemmed in with a trunk and sewing-machine in such a way that it could scarcely move. It had evidently been in this position for some time, as it had cried until it was hoarse and exhausted. Not finding her mother, Maggie called the defendant from the field, and without making any search about the premises he went to the homes of two of the neighbors and made inquiries as to the whereabouts of his wife. Dinner was prepared and eaten, after which a neighbor called and suggested that a search be made in the cellar of the house, which was accordingly done. There the body of Mrs. Asbell was found, lying on its back, the right arm partially extended; and a revolver was found lying a few inches from the right hand, with a pool of blood under the head and neck. It was discovered that she had been shot through the head, the bullet entering back of the right ear and passing downward and slightly toward the front, fracturing the skull on the left side of the head, where it was found about three-fourths of an inch lower than a point opposite the point of entrance and one-half an inch in front of it. At the coroner's inquest Maggie denied that illicit relations had existed between her and the defendant; but she subsequently testified that such relations had existed, and that the defendant had suggested that when he got rid of his wife he would marry Maggie, and move to another location, where they would live together as man and wife.
The theory of the State is that he desired to be rid of his wife in order to live with Maggie, and further, that the wife had long suspected the improper relations between her husband and daughter, which continued until the previous night, and was about to institute a prosecution against them; that, after Maggie had been sent from home, he returned to the house, killed his wife, placed her body in the position in which it was found, and then returned to the field to await the discovery.
The theory of the defense is that, becoming despondent over the conduct of her children and husband, Mrs. Asbell had taken her own life.
At the opening of the trial the defendant insisted that the cause was not triable at the February term of court. The term began on February 4, 1896, seven days after Mrs. Asbell was killed and three days after the defendant was arrested upon the charge of killing her. The preliminary examination was held on the 13th and 14th days of February. The information was filed on February 15, and the trial was begun on February 24. It is contended that the case was not triable until a term of court beginning after the preliminary examination was concluded. This contention is based on section 57 of the Criminal Code, which provides:
"When the prisoner is admitted to bail, or committed by the magistrate, he shall also bind, by recognizance, such witnesses against the prisoner as he shall deem material, to appear and testify at the next term of the court having cognizance of the offense, and in which the prisoner shall be held to answer."
The words "next term" ordinarily mean the next subsequent term, and if there was no other provision on the subject there would be much force in the defendant's contention. We are not to determine the question, however, upon inferences drawn from provisions with reference to other subjects, for the Legislature has specifically declared when a criminal cause is triable, as follows:
The language is plain and direct, leaving no doubt that the cause was properly triable at the February term. The defendant was in custody at the February term, when the information was filed, and under the statute the Court was required to try the cause unless cause for continuance was shown. The two sections seem to be somewhat inconsistent, but the express provision of section 157 must prevail over a mere inference drawn from section 57. The word "next" means nearest, and the words "next term," as used in section 57, when construed in connection with section 157, may be taken to mean the nearest term at which the cause is triable.
An application for a continuance was made, based mainly on averments that the killing of Mrs. Asbell and the charge that it had been done by her husband had aroused great indignation in the community toward him and that there was such excitement and passion as to prevent a fair trial. The time for preparation was quite brief, and it would seem as if the application might properly have been granted. It was not stated that there was testimony which the defendant was unable to procure at that term, nor did the affiant express a belief that the defendant could not then have a fair trial. No application for a change of venue on account of public prejudice was made, and there appears to have been no trouble in securing jurors who had not formed or expressed an opinion upon the merits of the case. We cannot say that the Court abused its discretion in refusing a continuance.
Many objections are made to rulings admitting and excluding testimony, but some of them are not of sufficient consequence to require special comment. There is complaint that the statements and suspicions of the neighbors as to illicit relations between the defendant and Maggie Whitehouse were admitted in evidence. Some questions tending in that direction were asked, but the testimony elicited was not important or prejudicial. Direct testimony was given as to the illicit relations, and none of the questions raised upon the testimony concerning these relations are deemed to be...
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