State v. Childers

• Decision Date: 09 April 1977
• Docket Number: No. 48202,48202
• Citation: 563 P.2d 999,222 Kan. 32
• Parties: STATE of Kansas, Appellee, v. Moore CHILDERS, Appellant.
• Court: Kansas Supreme Court

Page 999

563 P.2d 999

222 Kan. 32

STATE of Kansas, Appellee, v. Moore CHILDERS, Appellant.

No. 48202.

Supreme Court of Kansas.

April 9, 1977.

Syllabus by the Court

1. In a criminal case, the issue on appeal is not whether the evidence establishes guilt beyond a reasonable doubt, but whether the evidence is sufficient to form the basis for a reasonable inference of guilt when viewed in the light most favorable to the state.

2. In a prosecution for murder, malice may be inferred from the use of a deadly weapon.

3. The term 'maliciously', as it relates to the crime of murder, imports and includes the term 'wilfully.'

4. Intent, like any element of a crime, may be shown by circumstantial evidence, and a person is presumed to intend all the natural consequences of his acts.

5. The propriety of instructions to a jury is to be gauged by their consideration as a whole, each in conjunction with all other instructions given in the case.

6. Under the provisions of K.S.A. 60-441 a verdict may not be impeached by evidence concerning the reasoning employed by the jury in reaching its decision or as to what may have influenced the mantal processes of the jurors in arriving at their verdict.

7. The fruit of the poisonous tree doctrine bars the admission of evidence obtained in the course of an unlawful search and seizure, and when applicable the doctrine bars not only evidence directly seized, but also derivative evidence, either physical or testimonial, obtained as a result of confronting the accused with information learned in the unlawful search. The doctrine is inapplicable where the police learn of the evidence from an independent source or where the connection between the unlawful conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint.

8. Physical objects connected with a crime or which serve to unfold or explain it are generally admissible whenever the criminal act is under investigation and the lack of positive identification of such objects affects the weight thereof as evidence rather than their admissibility.

9. The trial court may, in the exercise of its discretion, permit the state to present evidence in rebuttal which might have been admissible in its case in chief, and the court's ruling in such regard will not be ground for reversal in the absence of an abuse of discretion to the defendant's prejudice.

10. Photographs, if relevant and material to matters at issue, are not rendered inadmissible merely because they may have been shocking or gruesome. A photograph, used by a coroner in describing a wound and the position or posture of the victim's body when the wound was received as a result of a crime of violence, is relevant evidence and admissible to establish material facts such as the manner and cause of death.

11. Declarations and statements made by one spouse against the other are admissible against the other when part of the res gestae.

12. Under the provisions of K.S.A. 60-463, a statement which falls within the scope of an exception to excluded hearsay, as set forth in K.S.A. 60-460, is not inadmissible as evidence on the ground that it includes a statement made by a declarant other than the witness, if such included statement itself meets the requirements of an exception.

13. To warrant the giving of an instruction on self-defense, under K.S.A. 21-3211, an accused must have a belief that the force used by him against an aggressor is necessary to defend himself against such aggressor's imminent use of unlawful force and there must be some evidence to support such belief.

Jack D. Sage, of Hershberger, Patterson, Jones & Roth, Wichita, argued the cause and was on the brief for the appellant.

Stephen M. Joseph, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Vern Miller, Dist. Atty., were with him on the brief for the appellee.

KAUL, Justice:

Defendant-appellant (Moore Childers) appeals from a conviction by a jury of second degree murder (K.S.A. 21-3402). This is the second appearance of this case before this court. Defendant was previously convicted of the same charge by a different jury. The prior conviction was reversed in State v. Childers, 217 Kan. 410, 536 P.2d 1349, because of the trial court's failure to instruct on the lesser included offense of involuntary manslaughter (K.S.A. 21-3404). Upon remand the case was retried before another trial judge who submitted the previously omitted lesser offense instruction, but the trial resulted in the same jury verdict as that returned in the first trial. This appeal followed.

The record reflects that the state's evidence in the second trial closely parallels the facts recited in our opinion in the first appeal. Therefore, only a brief summarization is necessary.

The deceased, James C. Frost, lived with his wife and stepson next door to the defendant's residence. During the evening of July 21, 1973, the Frosts had visitors at their residence who had a young son about the same age as that of the deceased's five year old stepson. The two boys were playing between the two houses during the evening in question and their activities apparently caused defendant's dogs to bark. Defendant and his wife, who had gone to bed at an earlier hour, were awakened and defendant got up and went outside to ascertain the cause of the dogs barking. Defendant told the boys to quit bothering the dogs and induced them to leave his premises by giving them some candy. Defendant then returned to his house and went back to bed.

A few minutes later Emory Farris, a thirteen year old boy who lived across the street, went over to the Frost residence. The boys told Farris of their encounter with the defendant and that he had given them some candy to keep off his yard and that he 'cussed at' them. In the meantime, Frost returned from a neighbor's house where he had been visiting and was informed by Farris what he had been told by the boys. Farris testified that thereupon Frost, the deceased, stated that he was going to have a talk with defendant and proceeded toward defendant's house. Farris followed along and overheard a conversation between Frost and defendant at a bedroom window of defendant's house. According to Farris defendant told Frost that he had given the boys candy to keep them off his yard and added that if they did not stay off he would 'blow their asses off.'

As Farris and Frost were leaving the defendant's premises defendant was heard to mumble something. Frost returned to the bedroom window and asked defendant what he had said. Farris testified that at this point defendant began firing a gun out of the window and Frost ran away from the defendant's house, down the slope of the yard toward the street. According to Farris, Frost bent over as he ran and was hit by one of the six shots fired by the defendant. The shot struck Frost in the lower back at a severe angle. According to Dr. William G. Eckert, a pathologist who performed an autopsy, the bullet entered Frost's body in the lower back area, proceeded through the body penetrating several vital areas and eventually lodged in the neck. Frost made it back to his own front porch where he died.

Police Officer Gary Olson was directed by the police dispatcher to the scene and arrived a few minutes after the shooting. He was told that the man who did the shooting was in defendant's house. Officer Olson and two other officers, who had arrived in the meantime, positioned themselves outside defendant's house. One of the officers yelled for the men in the house to come out. In a few minutes the porch light went on and defendant came to the front door. He was told to step outside and place his hands in the air. The officers then stepped onto the front porch and handcuffed defendant. Olson advised defendant of his constitutional rights and asked if he understood those rights. Defendant said he did and in response to Olson's question as to where the gun was, defendant nodded his head in a northeasterly direction which led the officers to believe the gun was by the side of the house. The officers then took defendant to the north side of the house. Defendant then told the officers that the gun was not there, but that it was in his bureau drawer in the bedroom. Defendant was asked to show the officers where the bureau drawer was and they proceeded into the house to the southeast bedroom where defendant nodded at the bureau drawer directly beside the bed. Olson opened the drawer and saw a blue steel revolver inside the drawer. Olson testified that after viewing the gun, the drawer was closed so the gun would not be disturbed until the laboratory investigators arrived. Olson took defendant to his police car and again advised him of his constitutional rights and asked if he would like to talk about what happened. Defendant again said he understood his rights and that he would talk. Defendant described the incident with the children; that he had given them candy; and about Frost coming to his bedroom window and telling him that he did not appreciate his cussing the children. Defendant told Olson that Frost then turned and walked away, but returned and came back toward the windown. Olson testified that defendant said, 'Mr. Frost came back, and I didn't know what he had in his hands, so I let him have it.'

Several days after the shooting Mr. and Mrs. Edgar Boston, who lived directly across the street from the Childers' house, discovered two holes in the wall of their house which Mr. Boston said were not there prior to July 21, 1973. Police determined the holes were caused by bullets which were recovered, but found to be damaged to the extent that ballistic tests were impossible.

Other testimony will be recited in the course of the opinion as it relates to points on appeal.

Defendant's first two points on appeal concern alleged insufficiency of the state's evidence. The points are interrelated and defendant merges his...