State v. Boone

• Decision Date: 09 July 1927
• Docket Number: 27,642
• Parties: THE STATE OF KANSAS, Appellee, v. FLORENCE BOONE, Appellant
• Court: Kansas Supreme Court

257 P. 739

124 Kan. 208

THE STATE OF KANSAS, Appellee, v. FLORENCE BOONE, Appellant

No. 27,642

Supreme Court of Kansas

July 9, 1927

Decided July, 1927.

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. HOMICIDE--Murder in Attempt to Commit Burglary--Aiding or Abetting in Attempt to Commit Burglary--Instructions. The instructions of the court correctly stated the law concerning a person who counsels, aids or abets another in an attempt to commit a burglary and robbery, and concerning that person's connection with the commission of a murder after the attempt to commit the burglary and robbery had been abandoned.

2. CRIMINAL LAW--Instructions--Requested Instructions Included in Another Charge. It was not error to refuse to give the instructions requested by the defendant concerning the matters stated in the first paragraph of this syllabus because the instructions given by the court correctly stated the law on those subjects under the evidence introduced.

3. SAME--Instructions--Failure to Request. It was not error to fail to give an instruction concerning circumstantial evidence; no such instruction was requested.

4. HOMICIDE--Murder in Commission of Burglary--Evidence. There was evidence sufficient to justify the jury in finding the defendant guilty of murder in the first degree.

5. CRIMINAL LAW--Evidence--Accomplice is Competent Witness. In a criminal prosecution an accomplice is a competent witness against the defendant.

6. SAME--Evidence--Acts and Conversation of Accomplices Before Participation by Defendant. In the prosecution of a person for murder, committed while attempting to commit a burglary or to avoid arrest therefor, an accomplice may testify to the acts and conversations of those who planned and arranged to commit the burglary although the person on trial did not participate in the effort to commit the crime until after the plans had been partially effected.

David F. Carson, of Kansas City, for the appellant.

William A. Smith, attorney-general, Roland Boynton, assistant attorney-general, Arthur J. Mellott, county attorney, and H. J. Emerson, deputy county attorney, for the appellee.

OPINION

MARSHALL, J.:

The defendant, Florence Boone, appeals from a judgment convicting her of murder in the first degree. She was charged with the murder of William D. Conley, a police officer.

The evidence tended to show that on the evening of September 11, 1926, the appellant, Ical Beasley, Toby Williams and C. F. Van Kirk (sometimes called Mr. Boone by the witnesses) met in the appellant's apartment in Kansas City, Mo., that Van Kirk and Williams planned to rob the Missouri Pacific depot in Kansas City, Kan., that they procured a brace and two bits, a round bar, a bottle of powder, some fuse, and a hatchet; that all of those instruments were laid on a bed in the appellant's apartment; that when Van Kirk and Williams entered the room, they were talking about getting a car in which to ride to the Missouri Pacific depot; that they had no money; that the appellant offered to and did furnish them the money with which to hire an automobile; that an automobile was procured; that the instruments were wrapped in a newspaper and placed in the automobile; that the appellant heard part of the planning of the proposed burglary and robbery and requested that she be permitted to go on the trip; that she saw the instruments that had been laid on a bed; that about 11:30 p. m. the appellant with Beasley, Toby Williams and Van Kirk went in the automobile to a place near the Missouri Pacific depot in Kansas City, Kan.; that the automobile was driven under a viaduct; that the appellant and Beasley remained in the automobile and were instructed by Van Kirk and Williams if anyone came to drive around the block, but to come back to that place with the automobile and not to run off with it; that Van Kirk and Williams left the automobile and were gone twenty-five or thirty minutes when they returned; that just as they returned to the automobile, police officers arrived, among whom was William D. Conley; that a number of shots were exchanged; and that Conley was killed. There was evidence which tended to prove that an effort had been made to break open some of the windows of the Missouri Pacific depot.

1. The defendant contends that "the court erred in its instructions to the jury," and complains of instructions 10 and 11, which were as follows:

"10. Under the laws of this state any person who counsels, aids or abets in the commission of any criminal offense may be charged, tried and convicted in the same manner as if he were a principal in the commission of such offense. Therefore, if you find from the evidence beyond a reasonable doubt that at the time and place alleged in the information one C. F. Van Kirk was engaged in attempting to commit a robbery or burglary, and while he was so engaged he made an assault with a revolver upon and shot and killed one William D. Conley; and you further find from the evidence beyond a reasonable doubt that before such assault and shooting occurred, the defendant Florence Boone had knowingly and willfully counseled, aided or abetted said Van Kirk in said attempt to commit such robbery or burglary, then and in that event it will be your duty to find the defendant, Florence Boone, guilty of murder in the first degree, as charged in the information, the same as if she had individually and alone committed the acts constituting such crime. On the other hand, if you do not find from the evidence beyond a reasonable doubt that before such assault and shooting the defendant had knowingly and willfully counseled, aided or abetted said Van Kirk in such attempt to commit robbery or burglary, or do not find from the evidence beyond a reasonable doubt that said Van Kirk was, at the time of such assault upon and shooting of said William D. Conley, engaged in an attempt to commit a robbery or burglary, then and in that event you will find the defendant not guilty.

"11. Even if you find from the evidence beyond a reasonable doubt that the defendant knowingly and willfully counseled, aided or abetted one Van Kirk and others in an attempt to commit robbery or burglary, yet if you find from the evidence that at the time of the assault upon and shooting of William D. Conley, said Van Kirk and his associates had abandoned such attempt and before such assault and shooting had decided to desist from such attempt, then and in that event your verdict should be for the defendant. However, if you find from the evidence beyond a reasonable doubt that up to the time of the commission of said assault and shooting, said Van Kirk and his companions had not decided to desist from said attempt, but that such assault and shooting were committed in an attempt to escape arrest for the commission of such attempted burglary or robbery, then under the law there was no abandonment of such attempt at the time of such assault and shooting."

The pertinent statutes are sections 21-401 and 62-1016 of the Revised Statutes. Section 21-401 in part reads:

"Every murder which shall be committed . . . in the perpetration or an attempt to perpetrate any arson, rape, robbery, burglary, or other felony, shall be deemed murder in the first degree."

Section 62-1016 of the Revised Statutes reads:

"Any person who counsels, aids, or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal."

In 29 C. J. 1093 it is said:

"One who in resisting a lawful arrest intentionally kills a person seeking to arrest him is guilty of murder."

In State v. Mowry, 37 Kan. 369, 15 P. 282, this court said:

"A private person may, in a temperate manner and without a warrant, arrest one who has just committed a felony; and it is murder for the person so attempted to be arrested to kill one whom he knows is in fresh pursuit and endeavoring to arrest him for such felony." (Syl. P 3.)

In 29 C. J. 1073 it is said:

"There may be responsibility for a homicide committed in the execution...