State v. Brown

• Decision Date: 06 October 1923
• Docket Number: 24,977
• Citation: State v. Brown, 114 Kan. 452, 219 P. 279 (Kan. 1923)
• Parties: STATE OF KANSAS, Appellee, v. O. F. BROWN, Appellant
• Court: Kansas Supreme Court

219 P. 279

114 Kan. 452

STATE OF KANSAS, Appellee, v. O. F. BROWN, Appellant

No. 24,977

Supreme Court of Kansas

October 6, 1923

Decided July, 1923.

Appeal from Reno district court; WILLIAM G. FAIRCHILD, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Motion for Change of Venue Properly Overruled. A motion for a change of venue on the ground of local prejudice and the bias of the trial judge is held to have been properly overruled.

2. SAME--Disqualification of Juror--Conflicting Oral Evidence--Question of Fact for Trial Court. Where in a criminal prosecution a juror in the course of examination as to his qualifications states that he has neither formed nor expressed an opinion on the merits of the case and after a conviction affidavits are filed of his having previously expressed a belief that the defendant was guilty, which are denied by his own affidavit, the overruling of a motion for a new trial on the ground of his disqualification is not subject to review, because the decision must be regarded as influenced to some extent by the appearance and manner of the juror while testifying on his voir dire.

Eustace Smith, J. R. Beeching, and William H. Burnett, all of Hutchinson, for the appellant.

C. B Griffith, attorney-general, John F. Rhodes, and H. F. Brown, county attorney, for the appellee; R. C. Davis, and Don Shaffer, both of Hutchinson, of counsel.

OPINION

MASON, J.:

On January 22, 1923, O. F. Brown was convicted of an assault upon Carmen Trabulse with intent to commit rape. He appeals.

1. Complaint is made of the overruling of a motion for a change of venue on the grounds that public opinion had been so inflamed against the defendant as to prevent his having a fair trial in the county and that the district judge was prejudiced against him.

The defendant in his verified motion said that bitter and inflammatory newspaper articles charging him with being guilty had been published in the county, causing the employment of counsel to assist the county attorney in the prosecution, and that by reason of such articles the American Legion had a public meeting at which false statements were made against him, resolutions condemning him were passed, and additional counsel to assist the state were employed. Evidence was introduced of the use of the following headlines in a Hutchinson paper during the latter part of October, 1922: "Little Assyrian Girl Wins Brother's Freedom. Sheriff Clark Goes to Aid of Faithful Sister." "State and Legion to be Prepared at the 'Dutch' Brown Hearing. May Ask that Bond of Man be Increased." "Brown is Bound Over; His Bond Now $ 5,000; Attorneys Ask $ 50,000. Counsel Complains at Conduct of Newspapers and Legion in Demanding Vigorous Prosecution of the Case." "Brown Case May Come Up This Term."

In addition, the following six paragraphs were shown to have been published in the same paper during the months of December and January:

"Serious charges will be preferred against the person who asked Carmen Trabulse to allow the state case against Orville Brown Sterling man, to be continued until the April term of court, if that person can be located, Judge W. G. Fairchild said yesterday."

"A letter from the girl, who is at her home in Highland Park, Mich., informed local officers that an attempt had been made to persuade her to allow the case to go over until the April term of court, because of 'the illness of the defendant's mother.' The man who asked the favor the girl said represented himself as the mayor of Biltmore, Kans., and gave his name as Glenn."

"County Attorney W. H. Burnett was instructed to start an investigation to determine the identity of this stranger who made a fruitless trip to Michigan. Prosecution will result if the identity of the man is learned. Had the trip been successful, it is pointed out, the case would likely have been dismissed because of lack of evidence. Instructions have already been sent to Miss Trabulse to be ready for the trial next week."

"There was no effort made to continue the case when it was called in district court yesterday morning for setting. It is assumed that Brown will be present at the trail. He was freed under $ 5,000 bond."

"Carmen Trabulse, Assyrian girl with only a slight knowledge of the English language, first came to Hutchinson to effect the release of her brother, Fred Trabulse, alias Alexander, a war veteran who had been arrested by city police on a charge of breaking into a hamburger wagon. Alexander had escaped from the county jail, where he was awaiting trial on a grand larceny charge, and had returned to his home after he had learned that his mother was seriously ill."

"The girl was led to believe that Brown would aid her in securing her brother's liberty and, according to her charges, was attacked by Brown. Attorneys, retained by the American Legion to aid the girl, secured Fred Trabulse's release on condition that his sister would return to appear against Brown. A great deal of interest has been taken in the case and court attaches...