State v. Beasley, 45422
| Decision Date | 09 May 1970 |
| Docket Number | No. 45422,45422 |
| Citation | 205 Kan. 253,469 P.2d 453 |
| Parties | STATE of Kansas, Appellee, v. Samuel E. BEASLEY, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record of a conviction of murder in the first degree in which the appellant contends the district court committed various trial errors, is examined, and it is held the district court did not err in (1) ruling the murder weapon was lawfully seized and was admissible in evidence; (2) refusing to grant (a) a continuance for the purpose of additional psychiatric examination, (b) a change of venue, and (c) a request that the jury view the scene of the crime; (3) admitting into evidence (a) the record of sale of the murder weapon (K.S.A. 60-460 (m)), (b) the appellant's suitcase and its contents, and (c) color photographs of the decedent; (4) applying the provisions of K.S.A. 21-107a to a capital case, and (5) overruling the appellant's motion for a new trial.
John O. Somers, Kansas City, argued the cause and was on the brief for appellant.
Nick A. Tomasic, Chief Deputy County Atty., argued the cause, and Frank D. Menghini, County Atty., was with him on the brief for appellee.
This is an appeal from a conviction of murder in the first degree. (K.S.A. 21-401.) The jury's verdict fixed the appellant's punishment at confinement and hard labor in the Kansas State Penitentiary for life.
On October 30, 1967, Beasley entered the premises of the Hudson and Odom Tire Company located in the Fairfax Industrial District in Kansas City, and in an attempt to perpetrate a robbery of that establishment, he shot to death George Felker, an employee.
Beasley was observed while on the premises and was subsequently identified by an employee who witnessed the shooting. As he ran from the premises and entered an automobile to escape, he was observed by two employees of a business adjacent to the tire company. Within an hour after the attempted robbery, the car driven by one of the co-defendants was stopped and its two occupants (not including Beasley) were taken into custody.
Beasley was next seen in the early morning of November 4, 1967, in a club as Des Moines, Iowa. A police officer, after being informed that a man in a gray jacket had a pistol in his pocket, entered the club, observed that Beasley was intoxicated, and confronted him. The gun was taken from him and he was arrested on a charge of intoxication, and carrying a concealed weapon.
Beasley was advised of his rights, and was notified he was wanted by Kansas authorities. Later that day at 5:00 o'clock p. m., Beasley waived extradition in writing before a magistrate of a court of record in Des Moines, and agreed to return to Kansas City, Kansas, on the warrant issued for his arrest. At his request, the Des Moines police took him to the bus depot to pick up his luggage. A depot attendant removed the luggage from a locker, handed it to Beasley and he identified it as his. Beasley was then returned to Kansas by Wyandotte County police officials.
Beasley was represented by retained counsel at his preliminary hearing. On December 19, 1967, an information was filed charging him with killing Felker while in the perpetration of a robbery. On March 25, 1968, trial began, and on March 30, 1968, the jury returned a verdict of guilty. On appeal it is contended several errors occurred during the trial.
Beasley first argues the gun taken from him in Des Moines, Iowa, and which was identified as the murder weapon, was unlawfully seized and it was error to admit it into evidence at the trial.
The officer who arrested Beasley testified he was walking along the street when the owner of a club came across the street and told him there was a man in the club who had a gun in his coat pocket. The officer entered the club and was told by the bartender that Beasley was the man with the gun. Beasley was intoxicated and made two or three trips up and down the bar pushing and shoving people. The officer stopped Beasley near the rear of the bar, showed him his badge, and told him he wanted to see him outside. Beasley stuck his hand in his right coat pocket and the officer put his gun on him. At the same time, the officer grabbed the right coat pocket and took the gun out of the pocket. Beasley claims the officer had no warrant for his arrest and no probable cause existed to arrest him or search his person. The point is not well taken. The factual situation presents a legal arrest made in response to information from two private citizens that a crime was being committed, that is, that Beasley was intoxicated and was carrying a concealed weapon in violation of the laws of the State of Iowa. It is clear the officer had probable cause to suspect Beasley of committing those crimes.
In State v. Little, 201 Kan. 94, 1. c. 96, 439 P.2d 387, 1. c. 390, it was said:
Under the attendant circumstances, the arrest was lawful and the property seized incident to that arrest was restricted to the gun, and was reasonable under the Fourth Amendment to the Constitution of the United States and Section 15 of the Bill of Rights of the Constitution of Kansas. (State v. Bell, 205 Kan. 380, 469 P.2d 448, and State v. Thomas, 205 Kan. 442, 469 P.2d 279, this day decided.)
Beasley next contends the district court erred in refusing to grant a continuance four days prior to the trial in order to permit his examination by a fourth psychiatrist.
On February 8, 1968, three medical doctors, two of whom were psychiatrists, were appointed as a commission to determine whether Beasley was able to comprehend the nature of the charges against him and to assist counsel in preparing his defense. (K.S.A. 62-1531.) The commission filed its report on February 13, 1968, finding Beasley able to comprehend his position and make his defense. Seven days later, he sought the continuance to permit his examination by the fourth psychiatrist. In response, the court stated:
The matter of a continuance in a criminal case is largely in the discretion of the district court. Unless the ruling prejudices the defendant's substantial rights in the trial of his case it will not be disturbed. (State v. Latham & York, 190 Kan. 411, 375 P.2d 788, cert. den. 373 U.S. 919, 83 S.Ct. 1310, 10 L.Ed.2d 418.)
During the trial, Beasley was examined by a Dr. Knelly who gave him some drugs and obtained information from him, but Beasley did not want the doctor to testify. Counsel concurred in Beasley's decision. The record shows that two capable trial lawyers were appointed to represent Beasley, and the case was specially set for trial on March 25, 1968. Appointed counsel vigorously represented Beasley at the trial court erred in receiving evidence relating his rights at each and every step of the proceeding. No showing was made by Beasley that he was prejudiced by reason of denial of further examination, and under the circumstances shown in the record the district court did not abuse its discretion in overruling his motion which would have further delayed the trial.
It is next contended the district court erred in receiving evidence relation to the purchased of the murder weapon for the reason that the record of the sale was not entirely, but only partially, made by the witness who identified the record.
The gun was purchased October 19, 1967, from the Gardner Loan Company, a pawnshop in Minneapolis, Minnesota, owned and operated by a father and son. An ordinance of the city of Minneapolis requires that a vendor of a weapon which can be concealed shall make a record of the sale by describing the weapon, showing the make, model and caliber, a description of the purchaser and his name and residence, the time of day any the date of the purchase, the amount paid, and whether the purchaser was Negro or Caucasian, which report shall be signed by the individual who carried the weapon out of the store. The record is entitled 'Report of Concealed Weapons Sold or Given Away,' and is submitted to the Minneapolis police department. Those records are kept in the regular course of business to record the details of each sale. The son testified he brought the record of the sale of the gun with him from his place of business and that he and his father worked together when the weapon was sold. He identified the record of sale and pointed out which entries he made and those made by his father. He made the entries stating the name and address of their place of business and the permit number issued to their company by the Minneapolis police department. His father recorded the description of the purchaser who signed the record with the name S. E. Beasley, recorded the date and the time of sale, and the caliber, make, and serial number of the gun.
K.S.A. 60-460(m) states the exception to the hearsay rule with respect to business records. The...
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