State v. Brown

• Decision Date: 08 June 1957
• Docket Number: No. 40300,40300
• Citation: 312 P.2d 832,181 Kan. 375
• Parties: STATE of Kansas, Appellee, v. Joseph Zebedee BROWN, Appellant.
• Court: Kansas Supreme Court

Page 832

312 P.2d 832

181 Kan. 375

STATE of Kansas, Appellee, v. Joseph Zebedee BROWN, Appellant.

No. 40300.

Supreme Court of Kansas.

June 8, 1957.

Syllabus by the Court

1. Where separate and distinct felonies are charged in separate counts of one and the same information, and all of the offenses charged are of the same general character, requiring the same mode of trial, the same kind of evidence, and the same kind of punishment, it is held that the defendant may be tried upon all of the several counts of the information at one and the same time, and in one trial.

2. Whether a defendant who is charged with several separate and distinct felonies, as related in the foregoing paragraph, may be tried upon all of the several counts of the information at one and the same time, and in one trial, rests in the sound judicial discretion of the trial court.

3. Where the state relies on a written voluntary confession as evidence to prove the commission of several separate and distinct felonies upon which conviction is sought, the state is not required to file separate informations on each offense and thereby defeat a prosecution of the second offense by virtue of G.S.1949, 62-1449.

4. Where a defendant is charged with rape in one count and kidnaping in the first degree in another count, both growing out of one comprehensive plan, it is held that the defendant is properly charged under G.S.1949, 21-449, with kidnaping in the first degree--there being no defect in the charge on the ground that rape supplied the element of bodily harm required in proof of kidnaping in the first degree.

5. G.S.1949, 21-449, construed as more fully set out in the opinion, denounces two acts as kidnaping in the first degree. The one is kidnaping with the intention of exacting ransom or reward and the other is kidnaping if bodily harm is in any way inflicted upon the person or persons kidnaped.

6. The testimony of an absent witness may be admitted in evidence when such testimony has been taken at a preliminary hearing, where the testimony at the prior hearing was given under oath and the defendant was confronted by the witness and had the right to cross-examine, provided the record discloses that a proper foundation has been established for the admission of such evidence.

7. Where the admission of the testimony of an absent witness given at a prior hearing, as related in the foregoing paragraph, is dependent upon the establishment of a proper foundation is evidence, it is held that bare statements of counsel are not entitled to the dignity of evidence and do not constitute the proof required to establish a proper foundation for the admission of such evidence. Under such circumstances, the admission of the testimony of an absent complaining witness has materially prejudiced the substantial rights of the defendant and is reversible error.

William H. Towers and Myles C. Stevens, Kansas City, and Elisha Scott, Topeka, argued the cause, Harry Hayward, Kansas City, was with them on the briefs for appellant.

Newell A. George, Asst. County Atty., and James P. Davis, Asst. County Atty., Kansas City, argued the causes, John Anderson, Jr., Atty. Gen., Paul Wilson, Asst. Atty. Gen., Donald E. Martin, County Atty., and Robert A. Foster, Asst. County Atty., Kansas City, were with them on the briefs for appellee.

SCHROEDER, Justice.

This is a criminal action in which the defendant, Joseph Zebedee Brown, appellant herein, was tried and convicted on three separate counts: kidnaping in the first degree, forcible rape, and assault with intent to rape. From the verdict and judgment entered against him, the defendant appeals to this court, specifying as error certain rulings of the court.

Trial began on the 30th day of January, 1956, and concluded with a verdict on the 9th day of February, 1956.

Mrs. Harris, one of the complaining witnesses in this criminal action, lived at 3617 Freeman Avenue, Kansas City, Kansas. She was a white woman and at the time of the trial was fifty-seven years old. After she got off from her work on February 21, 1955, at about 9:00 o'clock p. m., she went to her car which was in a parking lot at Eighth and Nebraska, Kansas City, Kansas. When she sat down in her car, some man stepped up from behind, opened the door, slid into the driver's seat and forced Mrs. Harris over to the other side of the car with a gun. She asked the man, 'What are you going to do?' The man said, 'Be quiet and you won't get hurt.' Mrs. Harris worked at the Bodker's Clothing Store. She stated that the man, later identified as the defendant--a nineteen-year-old colored youth, drove her automobile out of the parking lot without her consent. He drove up and down streets and finally drove down an alley and behind a building in which the Nebraska Waste Paper Company was located.

According to the testimony of Mrs. Harris, the defendant said, 'I don't want your money, I don't want your car.' She then asked the defendant, 'What do you want?' and he said 'I am going to rape you.'

After the defendant turned in behind the said building, he stopped the car and told Mrs. Harris to take off her clothing. This she refused to do. Then, the defendant forced her to the opposite side of the car and hit her on the shoulder with a gun. Mrs. Harris testified that the defendant took off her undergarments and forced her at the point of a gun to have sexual relationship with him.

After this incident, Mrs. Harris was released by the defendant at a stop light, where he jumped out of the car and ran off into the darkness. She went to a tavern and called the police. A detective named Don Adams, answered the call and took Mrs. Harris to her son's home.

Later Mrs. Harris went to police headquarters and identified defendant in a lineup of five men. Mrs. Harris testified at the trial that the defendant was the man that she identified at police headquarters, and she pointed him out in the courtroom as the man who raped her.

On the night of February 28, 1955, exactly one week after the foregoing incident, Mrs. Ruth Brakey was assaulted. Mrs. Brakey lived in North Kansas City, Missouri, at 2815 East 56th Street and worked at Maslan's Department Store in Kansas City, Kansas. At approximately 9:00 o'clock p. m., on the 28th day of February, she went to the alley after work to get into her parked car. As she got in from the right side a man who wore a mask and had a revolver in his hand tried to get into her car from the left side. Mrs. Brakey kicked so furiously that she kicked the mask off the man and got a good look at him. In the process she screamed and attracted the attention of persons nearby. The defendant escaped into the darkness and later Mrs. Brakey picked the defendant out at police headquarters and identified him as the man who attempted to get into her car.

Don Adams, a detective working out of the police department of Kansas City, Kansas, met Mrs. Harris on the night of February 21, 1955, at a tavern located at 11th and Quindaro in Kansas City, Kansas, pursuant to a call he had received from headquarters. He related that Mrs. Harris was nervous, excited, crying and emotionally upset at the time.

Subsequently, on the 28th day of February, 1955, Mr. Adams saw the defendant, Joseph Zebedee Brown, at the detective bureau headquarters where he had conversation with him. At that time the defendant made a statement in writing as follows:

'My name is Joseph Zebedee Brown, and I reside at 823 Ohio Street in Kansas City, Kansas. I was told by Detective Don Adams that I had the right of an attorney, and that I did not have to make a statement unless I desire to do so. My Constitutional rights were explained to me by Detective Adams. Knowing this, I wish to tell what I know about the rape of a white woman that occurred the Monday night of February 21, 1955. This happened about 9 p. m. at night.

'I work for the Nebraska Paper Company, and on that date I got off from work about 5 p. m. I went home about 8 p. m. and walked down to Fifth and Chelsea and came up to Seventh Street, and walked up to Eighth and Everett. When I arrived at Eighth and Nebraska, I saw a white woman crossing the street and get into her Plymouth. I saw her open the door of her car and get in. I walked over to her car and opened the door to her car, and had my .38 caliber gun in my hand. I told her to scoot over, and I got into the car under the wheel. I drove straight down Eighth Street to Chelsea, and finally went to in back of the Nebraska Waste Paper Company, where I raped this white woman. I told her I did not want her money when she offered it to me. After I completed this act, I drove to about Hallock and Chelsea, where I got out of the car.

'For the past three or four years I have noticed a woman who works at Maslan's store. She parks her car in back of the store. I decided on Sunday, February 27, that I would like to have intercourse with her. On this date, February 28, 1955, I left home about 8:10 p. m. and went to Seventh and Ohio, where I bought a half pint of gin. I went to my grandmother's to in back of Maslan's store, where I spotted this woman's car. The car was a 1949 Chevrolet, 2-door. I broke out the front door glass on the driver's side of the car. In about five minutes this white woman came down to her car and got into her car. I do not know whether she saw the glass was broken out or not. I was standing in the dark, close to her car, and as soon as she got into the car I immediately walked over to the car. This woman saw me and started kicking at the door of the car, and screaming. I saw that there was several people looking my way and I ran to Fifth and State, where I saw a car parked. I asked the man in the car to take me to Eighth and Everett, where I got out of the car. I walked to the parking lot between Nebraska and Washington on Eighth Street, where I got into a car that was parked. I sat in this car for five or ten minutes. I got out of this car and walked to Eighth and...