State v. Christensen

• Citation: 199 P.2d 475,166 Kan. 152
• Decision Date: 23 November 1948
• Docket Number: 37415.
• Parties: STATE v. CHRISTENSEN.
• Court: United States State Supreme Court of Kansas

199 P.2d 475

166 Kan. 152

STATE v. CHRISTENSEN.

No. 37415.

Supreme Court of Kansas

November 23, 1948

Rehearing Denied Dec. 20, 1948.

Appeal from District Court, Clay County; Edgar C. Bennett, Judge.

Birdie Christensen was convicted of murder in the first degree, and she appeals.

Judgment reversed, and case remanded for further proceedings.

See also 165 Kan. 585, 195 P.2d 592.

THIELE J., dissenting.

Syllabus by the Court.

1. In the event a defendant, in a prosecution for murder, is found guilty, by a jury, of murder in the first degree, it becomes the duty of the jury and of the jury alone, under the provisions of section 21-403, G.S.1947 Supp., to determine whether the death penalty or life imprisonment shall be inflicted.

2. In a trial by jury, in which the defendant is charged with murder in the first degree, it is the duty of the trial court to instruct the jury that in the event it finds the defendant guilty of murder in the first degree, it shall determine which of the two punishments, as prescribed in section 21-403, G.S.1947 Supp., shall be inflicted.

3. In a prosecution for murder in the first degree, an announcement during the trial by counsel for the state that it will not ask for imposition of the death penalty amounts only to a recommendation. Neither such announcement, nor stipulation to such effect by counsel, nor consent thereto by the court, can relieve the court or the jury of their statutory duty as stated in the preceding paragraphs of this syllabus.

C Vincent Jones and Wayne W. Ryan, both of Clay Center, for appellant.

John Berglund, Jr., of Clay Center, and Ed Rooney, of Topeka, for appellee.

HOCH Justice.

This is an appeal from a conviction of murder in the first degree.

In view of the conclusion presently to be stated, brief recital of the facts will suffice. After an illness of a few hours, the husband of appellant, then Mrs. Birdie McDonald, died at Clay Center, Kansas, on December 15, 1944. In the death certificate, the cause of death was stated to be acute coronary occlusion together with gastro enteritus. In August, 1947, the county attorney having secured the written consent of the widow and others, to have the body exhumed, the body was exhumed and body tissues examined. On August 18, 1947, a report was made by the chemist that the laboratory tests showed the presence of arsenic in substantial quantities in the body of the deceased. On November 5, 1947, a complaint was filed charging appellant, who had remarried and was then Mrs. Christensen, with having caused the death of her former husband by placing arsenic in his food, and she was bound over to the district court. On January 30, 1948, an information was filed again charging appellant with murder in the first degree, and the case came to trial in March, 1948. The jury brought in a verdict of murder in the first degree but did not determine whether the punishment should be life imprisonment or death, as the statute provides, since that question, for reasons hereinafter stated, had not been submitted to the jury by the trial court. Motion for new trial was made and overruled and sentence was imposed as follows: 'It is the judgment and sentence of this court that you be confined in the State Industrial Farm for Women at Lansing, Kansas, under the indeterminate sentence law of this State, and until discharged by due course of law, and that you pay the cost of this action.'

In considering this appeal, we are met at the outset by a serious question not raised by either party but which confronts us on the record and which cannot be ignored.

During the trial and as a result of procedings had in chambers, counsel for the state and the defendant entered into a stipulation approved by the court with reference to the penalty that might be imposed in the event the defendant should be found guilty of murder in the first degree. The stipulation appears in the abstract as follows:

'Mr. Jones: (for defendant) The State having announced that it does not wish to ask the jury to fix the death penalty and having so announced at the beginning of the trial, and also at the end of the trial, the defendant joins in asking that the question of penalty be not submitted to the jury and with the understanding that in case of a verdict of guilty of murder in the first degree as charged in the information that the penalty would not be death.

'Mr. Rooney: (for the State) If the court please, in view of the fact that the State has announced, and now reaffirms its statement, that it does not wish and is opposed to the death penalty in this case, we join with the defense in the request that the instruction of the death penalty be left out in the event of a conviction of murder in the first degree. It is agreed between counsel for both sides that the penalty should be life imprisonment and the question of the death penalty is, therefore, out of the case.

'Mr. Jones: I don't want to agree it shall be a life penalty----

'The Court: I take it, gentlemen, Mr. Jones, you do not wish at this time to agree that the defendant be given a life sentence. I think we both understand that, that life is the other alternative. We are speaking in regard to the terms of the statute rather than as to what the ultimate outcome might be.

'Very well, gentlemen, upon the request of both the State and the defendant, the Court will not submit the matter of a death penalty to the jury, the understanding being that in the event of a verdict of guilty of murder in the first degree, the death penalty will be disregarded and other statutory penalties will be imposed, or may be imposed.

'Mr. Rooney: That is satisfactory to the State.

'Mr. Jones: I think that will take care of it.'

The question at once presents itself whether the parties could enter into a binding stipulation of that sort, and whether the trial court, in view of the stipulation, could properly withdraw the question of punishment from determination by the jury.

This question is of such a nature that it is our duty to consider it even though it has not been raised by the parties. It is well settled that in matters of public concern where it appears upon the record that statutes are involved, determinative in character, it becomes the duty of an appellate court to take cognizance of them even though they are not raised by the parties. A frequent illustration of this rule is found in appellate review of questions of jurisdiction arising on the face of the record. Such questions cannot be ignored even though the parties to the appeal may not have raised them or may have sought to waive them. Montgomery Ward & Co. v. Ellis, 154 Kan. 131, at page 133, 114 P.2d 802, and authorities cited.

In 1937 the legislature enacted a law, G.S.1947 Supp. 21-403, relating to the penalty to be inflicted upon persons convicted of murder in the first degree, the pertinent provisions of which read as follows:

'Every person convicted of murder in the first degree shall be punished by death, or by confinement and hard labor in the penitentiary of the state of Kansas for life. If there is a jury trial the jury shall determine which punishment shall be inflicted. If there is a plea of guilty the court shall determine which punishment shall be inflicted,' etc. (Italics supplied.)

It must be noted that this statute provides without any qualification whatever that where a person is found guilty by a jury of murder in the first degree, the jury shall determine whether the penalty shall be death or life imprisonment.

It is a fair assumption that the trial court, as well as the parties proceeded upon the theory that the provisions of the statute could be validly waived, since the state was not asking the death penalty. We cannot subscribe to that theory. We are fully aware of the rule that many rights and privileges, even including guaranties of the bill of rights, may be waived by those entitled to exercise them. Notable illustrations of such right of waiver are to be found in decisions holding that a defendant in a criminal prosecution may waive a trial by jury. Among the later cases--following earlier cases--is the leading case of Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 254, 74 L.Ed. 854, 70 A.L.R. 263, decided by the United States supreme court in 1930. In that case, in which the defendants were charged with a federal offense, a jury of twelve men had been duly empaneled but during the trial one of them became severely ill and was unable to continue as a juror. In open court it was thereupon stipulated by the government and counsel for defendants, defendants personally giving their consent, that the trial should proceed with the remaining eleven jurors. In the supreme court the issue was raised as to whether the verdict of guilty was valid, having been returned by a jury of eleven rather than of twelve men. In the opinion the court discussed the meaning of the phrase 'trial by jury' as used in the federal constitution and said that it means a trial by jury as understood and applied at common law at the time the constitution was adopted; that among the essential elements were that the jury should consist of twelve men, neither more nor less; and that the verdict should be unanimous. Following an extended discussion of the right to trial by jury, the...