State v. Booker, 44902

• Decision Date: 09 December 1967
• Docket Number: No. 44902,44902
• Citation: 200 Kan. 166,434 P.2d 801
• Parties: STATE of Kansas, Appellee, v. Edna Mae BOOKER, Appellant.
• Court: Kansas Supreme Court

Page 801

434 P.2d 801

200 Kan. 166

STATE of Kansas, Appellee, v. Edna Mae BOOKER, Appellant.

No. 44902.

Supreme Court of Kansas.

Dec. 9, 1967.

Rehearing Denied Jan. 5, 1968.

Syllbus by the Court

The record in a criminal action, wherein the defendant was charged with murder in the first degree and convicted of manslaughter in the first degree, is examined and it is held:

1. The trial court did not err in admitting in evidence photographs of the body of deceased and testimony of defendant's behavior subsequent to the crime.

2. Instructions defining self-defense, justifiable homicide, reasonable doubt and explaining and limiting consideration to be given to the carrying of a concealed weapon by defendant; were not erroneous.

3. The trial court did not err in requiring defendant to stand trial on a charge of murder in the first degree.

4. The trial court did not err in denying defendant's motions for discharge and a new trial.

Russell Shultz, Wichita, argued the cause, and Larry Kirby, Wichita, and Leonard Watkins, El Dorado, were with him on the briefs for the appellant.

Donald Foster, Deputy County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., Keith Sanborn, County Atty., and A. J. Focht, Deputy County Atty., were with him on the briefs for the appellee.

KAUL, Justice.

This is a second appeal by the defendant, Edna Mae Booker, from a second conviction of first degree manslaughter. Our opinion in the first appeal is reported in State v. Booker, 197 Kan. 13, 415 P.2d 411, and will be referred to in the course of this opinion.

The defendant was charged with the first degree murder of her husband, James Booker, by shooting him with a pistol at 5 p.m. on March 8, 1965, in their home in Wichita. She was tried by a jury and convicted of manslaughter in the first degree. (K.S.A. 21-407.) On appeal the first conviction was reversed and the case remanded for a new trial. The defendant was again tried on a charge of first degree murder and again convicted of manslaughter in the first degree. Defendant's motion for a new trial was heard and overruled and thereafter the current appeal was perfected.

The essential facts of the unhappy married life of defendant and her deceased husband were related in our first opinion and will not be repeated in detail. The evidence at the second trial was essentially the same as that submitted in the first trial and, as summarized in our first opinion, is incorporated by reference herein. Petinent portions of the evidence, relative to the issues raised in the current appeal, will be pointed out in the course of this opinion.

The final and fatal affray between defendant and the deceased stemmed from marital conflict involving defendant's admitted infidelity with another man, Charles F. McElroy, a Sergeant in the Air Force. The theory of the prosecution, as presented in the trial, was that McElroy obtained the pistol used in the shooting, gave it to defendant, and planned with her to arrange a situation in which the husband could be disposed of by defendant while acting in self-defense. The prosecution claimed defendant provoked her husband into the affray and then armed herself and killed him rather than leaving through the front door of the house which opened from the room in which the shooting took place.

The defendant claims she acted in self-defense. At the trial she advanced as her theory the proposition that because of previous threats and physical abuse by her husband she was in danger of harm to her person in the final encounter and, therefore, justified in firing the fatal shots in self-defense.

Ten points of error are specified by defendant and will be considered in the order presented.

Defendant first contends the court erred in admitting in evidence two photographs of the body of the deceased. The exhibits complained of are black and white photographs taken during a post-mortem examination of the body of deceased. Defendant admits in her brief that a proper cautionary instruction was submitted in which the jury was admonished not to allow the appearance within the photographs to cause passion or prejudice in their minds against the defendant. The sole argument advanced on this point is that the photographs were unnecessary to show the cause of death and were introduced solely to inflame the minds of the jurors.

The photographs were used by Dr. Karl M. Neudorfer, a pathologist, who performed the autopsy to demonstrate to the jury the paths taken by the bullets through the body of the deceased. Under the opposing theories advanced by the parties during the trial of the case the relative positions of the victim and defendant at the time of the shooting became one of the controlling issues. Dr. Neudorfer testified in considerable detail as to the relative position of the gun and the body of deceased and demonstrated by using the photographs to show the paths of the bullets in explaining his conclusions. The photographs for such purposes were obviously relevant and material. Even though gruesome, photographs properly identified, as representing physical objects which constitute a portion of a transaction which serve to unfold or explain it, may be exhibited in evidence whenever the transaction is under judicial investigation. (State v. Zimmer, 198 Kan. 479, 426 P.2d 267, cert. den. 389 U.S. 933, 88 S.Ct. 298, 19 L.Ed.2d 286; State v. Turner, 193 Kan. 189, 392 P.2d 863; State v. Stubbs, 186 Kan. 266, 349 P.2d 936, cert. den. 363 U.S. 852, 80 S.Ct. 1632; 4 L.ed.2d 1734; State v. Spencer, 186 Kan. 298, 349 P.2d 920; State v. King, 111 Kan. 140, 206 P. 883, 22 A.L.R. 1006; State v. Sweet, 101 Kan. 746, 168 P. 1112.)

Defendant next makes a twofold attack on the trial court's instruction on first degree manslaughter. It is first argued the instruction should not have been given at all and second that the instruction given was incorrect. Defendant argues there was insufficient evidence here to justify the instruction. As we have indicated, prosecution evidence related in our opinion in the previous appeal is substantially the same as that disclosed in the record here. In the previous opinion (State v. Booker, supra.), after reviewing the evidence, we stated:

'* * * The jury was correctly instructed that the charge of murder in the first degree in this case included murder in the second degree and manslaughter in the first, third and fourth degrees. * * *' (197 Kan. p. 15, 415 P.2d p. 413.)

While instructions given should be based on the evidence in the case (State v. Jensen, 197 Kan. 427, 417 P.2d 273; State v. Diggs, 194 Kan. 812, 402 P.2d 300; State v. Linville, 148 Kan. 142, 79 P.2d 869.) in a homicide prosecution where the evidence presents circumstances from which a lower grade of homicide might be inferred the court must instruct in such lower degree. We believe, under the evidence before the trial court in this case, failure to so instruct would have amounted to reversible error in a prosecution for first degree murder. Eye witness testimony of the shooting consisted of only that of defendant and a view of a part of the shooting by Wilda Farley. Wilda is a daughter of defendant by a previous marriage. Her age is not shown, however, she testified she was in the seventh grade in Junior High School. She was in the kitchen when she heard her mother and stepfather arguing. When she heard a gun shot she ran into the living room. Her testimomy is narrated by defendant as follows:

'* * * she went into the living room and saw her Mother and Father struggling over the gun over in the corner of the living room. She said she ran into the living room and saw the lamp fall and heard it break and she got the smaller children and took them behind the planter or into the kitchen. She said that when she ran into the living room that her Father had said 'Your Mother has shot me' and he was lying in front of the couch and he sort of doubled up and then straightened out. She quoted the Decedent as saying her Mother was trying to kill him. She stated further that she saw her Mother fire the gun and the bullet hit the table and ricocheted off the table at the time when the Decedent was on the floor. She said that her Mother was standing by the stereo at the time the Decedent was lying on the floor. She was firing the gun; she didn't know how any times the gun had fired but the defendant was standing up crying and immediately went in and called for an ambulance in the kitchen. * * *'

Defendant described the shooting as narrated in her abstract in the following manner:

'When she arrived home from work she was met by the decedent who insisted that they go to the store. When they returned the defendant ask her daughter to prepare supper. The defendant went into the bedroom and left her purse but because of the abusive language that the decedent was using she placed the gun in her coat pocket, loaded and with safety catch off. When the decedent kept up his abusive name calling and language she told him that she had a gun. She did so because he hoped that this would control him as she was unable to get out of the house or to get to a phone to call a policeman. He kept calling her names and then came for her saying, 'If you don't get out, right out of here I'm going to-,' at this point she pulled the gun and fired. The next shot was fired while they were scuffling and she was across a chair, but she does not know when the rest of the shots were fired but that she remembers that after the second shot she told the decedent that there were more shots in the gun. She testified that she started pulling the trigger as soon as she was loose from him but that she did not see him fall. When she opened her eyes he was on the floor. * * *'

She also denied any plan or intent to kill the deceased.

On cross-examination she admitted her husband might not have heard when she told him she had a gun. She also admitted her affair and sexual intercourse with Sergeant McElroy. She...