State v. Bassnett

• Decision Date: 05 June 1909
• Docket Number: 16,087
• Citation: 80 Kan. 392,102 P. 461
• Parties: THE STATE OF KANSAS v. T. J. BASSNETT
• Court: Kansas Supreme Court

102 P. 461

80 Kan. 392

THE STATE OF KANSAS v. T. J. BASSNETT

No. 16,087

Supreme Court of Kansas

June 5, 1909

Decided January, 1909.

Appeal from Finney district court; WILLIAM H. THOMPSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--"Crime or Misdemeanor, Not Amounting to a Felony." The "crime or misdemeanor, not amounting to a felony," mentioned in section 12 of chapter 31 of the act relating to crimes and punishments (Gen. Stat. 1901, § 1997), need not necessarily be independent of and separate from a homicide intended by such section to be reduced from murder to manslaughter in the first degree, but it may be involved in and constitute a part of such homicide.

2. CRIMINAL LAW--Manslaughter--Attempt to Perpetrate an Assault. Where a homicide is committed under such circumstances as would otherwise be murder, it may be reduced to manslaughter in the first degree if committed while attempting to perpetrate an assault or other crime or misdemeanor less than a felony upon the deceased.

3. PRACTICE, DISTRICT COURT--Change of Venue. A change of venue on account of the prejudice of the inhabitants of the county against the defendant should not be granted unless it is made to appear to the satisfaction of the court that the defendant can not have a fair trial in such county on account of such prejudice.

4. NEW TRIAL--Misconduct of Juror--Finding of Trial Court Conclusive. Where, upon a motion for a new trial it is contended that a juror, after being impaneled to try the cause, made statements indicating that he entertained a decided and hostile opinion against one of the parties, which is denied, and the question is presented to the court upon the oral testimony of witnesses, and upon the hearing the court decides the question by denying the motion, such decision will be deemed final and conclusive here.

5. CRIMINAL LAW--Instructions. Instructions examined and sustained.

Fred S. Jackson, attorney-general, and Edgar Roberts, county attorney, for The State; Orla H. Foster, Fred J. Evans, and Fred S. Dunn, of counsel.

M. W. Sutton, T. A. Scates, A. Hoskinson, W. R. Hopkins, R. W. Hoskinson, and R. J. Hopkins, for the appellant.

OPINION

GRAVES, J.:

On the 14th day of September, 1907, one W. H. Browning was shot and killed in Finney county. John T. Reed and the defendant, T. J. Bassnett, were jointly charged with murder in the first degree on account of such killing. They were tried separately. Reed was tried first and found guilty of murder in the second degree. The defendant was subsequently tried, and on February 27, 1908, was convicted of manslaughter in the first degree, and on March 28, 1908, was sentenced therefor by the district court of that county. From that sentence he appeals to this court. There are numerous assignments of error, but they are all covered by four principal objections, and, the argument of counsel in their briefs having been confined to these, none other will be considered here.

The first complaint made is that the court refused to grant a change of venue. The petition for this application, omitting formal portions, reads:

"That in the above cause and court he is charged with murder by the state, jointly with one John T. Reed, who has been tried and convicted of murder in the second degree, in said county and court; that the people from whom the jurors were drawn in Finney county, Kansas, are so biased and prejudiced against defendant that he can not have a fair and impartial trial therein; that the cause of such prejudice and bias on the part of the said people is that there was tried in said court and said county two cases in which the charge was the same, the one of said cases was tried quite recently, and the defendants in said two cases were both acquitted; that the community at large believes they ought not to have been acquitted, and a great amount of talk was had about it, among the people, and an intense feeling grew in the vicinity that men charged as defendant is should be convicted, and affiant believes that Reed, his codefendant, was sacrificed to that feeling, and affiant believes that he will be also, if the case is tried in Finney county, and to avoid such injustice defendant asks that this court change the venue of this case to some court in said district where such prejudice does not exist."

To this petition was appended ninety-two signers, who made oath that they believed the statements of the petition to be true. The alleged homicide was committed in Garfield township, Finney county, and the petitioners were all residents of that township. They were secured by the defendant and a justice of the peace, who administered the oath to each. The defendant and one of the petitioners, J. A. Goodman, were cross-examined upon the hearing of the application. This cross-examination disclosed that the prior cases mentioned in the petition as having caused an intense feeling in the vicinity must have been cases which were tried several years before the application in this case was made, and that since that time material changes had been made in the population by the removal from the county of persons familiar with the circumstances surrounding the prosecutions and by the addition of new settlers in the county and township. Mr. Goodman had lived in Garfield township twenty-two years, and was not acquainted with the names of many of the petitioners or where they resided. There was no proof to sustain the facts involved in the conclusions of the petition; the showing failed to make a prima facie case, so far as Garfield township alone was concerned, further than the petition itself. The court, in denying the application, ordered that no jurors be taken out of this township. We are unable to see how this order refusing a change of venue was erroneous or prejudicial to the rights of the defendant. Section 177 of the criminal code requires that where proof is made by affidavits they must be to the satisfaction of the court, which they were not in this case. The statements in the petition were the merest conclusions, unsupported by any tangible facts. (The State v. Parmenter, 70 Kan. 513, 79 P. 123.)

The next question discussed is the alleged error of the court in overruling the defendant's challenges of jurors for cause, whereby his peremptory challenges were exhausted and he was unable to secure a fair and impartial jury. We have carefully read the examination of each juror to whom the challenge of the defendant for cause was overruled, and are unable to find that the court erred in any of such rulings. The one to which the defendant makes his strongest objection is that of juror F. W. Griggs, whose examination, so far as material, reads:

(Examination by the state.)

"Ques. Mr. Griggs, you reside here in the city? Ans. Yes, sir."

"Q. Mr. Griggs, have you ever heard this case discussed? A. Yes, sir.

"Q. In a general way or a casual way? A. In both ways, I suppose.

"Q. Did you ever talk with any one about it? A. Yes, sir.

"Q. From what you may have read did you form or express any opinion as to the guilt or innocence of the defendant? A. Well, I think I did."

"Q. From anything you might have heard, did the parties who were talking state any of the facts in the case? A. They were just simply speaking of the occurrence.

"Q. Was it relative to the case of The State against Bassnett or relative to the case of The State against Reed? A. Well, I think it was both.

"Q. Both? A. Yes, sir.

"Q. You read it in the newspapers? A. Yes, sir.

"Q. Mr. Griggs, from what you may have heard or read, did you form or express any opinion as to the guilt or innocence of the defendant, T. J. Bassnett? A. Well, I presume I did.

"Q. Is that such an opinion as it would require evidence to remove it? A. It certainly would; yes, sir.

"Q. Is it a fixed opinion or a slight opinion? A. Well, I never form a definite opinion in regard to anything until I hear all of it.

"Q. Then it is a slight opinion? A. Well, it might be that; yes, sir.

"Q. Then you have no fixed opinion at this time as to the guilt or innocence of the defendant, T. J. Bassnett? A. No, I think not.

"Q. Do you know of any reason at all, Mr. Griggs, if you were chosen to sit as a juror to try this case, why you should not render a fair and impartial verdict under the law and the evidence? A. I have no prejudice whatever.

"Q. If there was a killing, have you any opinion as to whether the killing was justifiable? A. I certainly couldn't have."

(Examination by defendant.)

"Q. You live here in town, Mr. Griggs? A. Yes, sir.

"Q. You were living here last September? A. Yes, sir.

"Q. You have heard what purported to be the facts in this case? A. Yes, I have heard the general run.

"Q. You read about it in the papers? A. Yes, sir.

"Q. You have an opinion in regard to the facts of the case? A. Well, in regard to what I have heard, I have an opinion; yes.

"Q. Well, anything you may have heard in regard to the matter did you believe it? A. So far as I know.

"Q. Did you have any reason to disbelieve it? A. No, sir; not anything to the contrary.

"Q. Then, as a matter of fact, you did believe it? A. Well, I just take it for facts until I know it to be otherwise.

"Q. And you would believe it until the contrary was shown? A. Well, I naturally would; yes.

"Q. You read about it in the papers? A. Yes, sir.

"Q. And you remember about the trial in the district court of John T. Reed? A. I knew of the verdict. I was not in here and heard any of it. Of course I have read something of it; yes.

"Q. And so you have formed an opinion as to whether or not there was a killing had taken place? A. Yes, sir.

"Q. You formed an opinion as to whether Mr. Browning was killed? A. Yes, sir.

"Q. You formed an...