State v. Cox
| Decision Date | 08 July 1961 |
| Docket Number | No. 42201,42201 |
| Citation | 363 P.2d 528,188 Kan. 500 |
| Parties | STATE of Kansas, Appellee. v. Eddie D. COX, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. In a criminal prosecution for kidnapping in the first degree under G.S.1959 Supp. 21-449 wherein defendant is found guilty by a jury, the jury alone has the duty and power to determine what penalty shall be inflicted under the statute.
2. When, in a prosecution such as that set out in paragraph one, after the trial court instructs the jury on G.S.1959 Supp. 21-449 and among other possible verdicts submitted includes one in typewritten form which merely requires that it be dated and signed by the jury foreman, as more fully explained in the opinion, the statute is violated and such violation compels the granting of a new trial.
Richard F. Waters, Junction City, for appellant.
Robert L. Deam, Spec. Pros., Junction City, William M. Ferguson, Atty. Gen., on the brief, for appellee.
This is an appeal from a verdict of a jury and the judgment and sentence entered thereon by the trial court in a criminal prosecution and from the order overruling defendant's motion for new trial.
The information charged in count one that on October 31, 1959, defendant unlawfully, feloniously, on purpose and of malice aforethought shot Lyle Koberstein with a revolver, with intent to kill him, contrary to G.S.1949, 21-431; count two, that on October 31, 1959, defendant unlawfully, feloniously, wilfully, without lawful authority seized, kidnapped, confined and took away against his will Lyle Koberstein, and inflicted bodily harm upon him, contrary to G.S.1959 Supp. 21-449; count three, that on October 31, 1959, defendant unlawfully, feloniously and wilfully took a 1959 Buick automobile from Lyle Koberstein in his presence and in whose custody, control and possession the vehicle was at the time, and the taking was by violence to Koberstein's person, contrary to G.S.1949, 21-527. The state at the close of its evidence dismissed the last count.
On January 21, 1960, two prominent and capable attorneys, Lee Hornbaker and Richard Waters of the Geary County Bar Association, were appointed to represent defendant. This proceeding of appointment of counsel along with the next succeeding step, that of setting the amount of bond which involved reference to prior offenses, were both recorded on tape and later broadcast over Junction City radio station KJCK. Defendant strenuously objected to such tape recording and at every possible stage of the trial renewed the objection on the ground that it violated No. 35 of the Canons of Judicial Ethics. These objections were all overruled by the trial court. While this court is not holding these rulings to be reversible error, such proceedings are not approved or sanctioned by this court, and they are not to be allowed in a courtroom or are they to be participated in and indulged in by a court.
Defendant contends that due to extreme coverage of 'crime' in and by the news media of Junction City and a linking of this case therewith many prospective jurors had formed an opinion (these were all excused) and in one instance one of such prospective jurors made some statements which were at most irregular, but the trial court immediately admonished the jury to disregard the remarks and the irregularity was thereby remedied.
The only evidence which was wholly uncontradicted and undisputed was offered by the state in regard to the occurrences on Saturday afternoon, October 31, 1959, the day of the alleged commission of the crime. It was shown that defendant, in attempting to pay for a pair of cuff links in a jewelry store in Junction City, presented a check for $157 to the jeweler and that the jeweler's wife called Kansas City to clear the check and found the check was 'no good.' The Junction City police department was called and officer Lyle Koberstein came to the store alone in a police car. He took defendant, and they got into the police car, and after driving a short distance defendant 'whipped out his gun' and pointed it at Koberstein. The gun was a loaded Highway Patrolman .357 Magnum which was in a firing position. Defendant said he was wanted for murder and one more would make no difference to him and for Koberstein not to try any tricks or funny stuff, to drive straight ahead, not go into dead end streets and drive the speed limit. At the outskirts of town defendant made him stop ad told him to 'step away from the police car,' whereupon defendant told him to drop his gun belt, but instead Koberstein pulled his gun and defendant shot him in the right arm.
Complaint is made of the trial court's instruction with respect to this evidence and to what extent it would invoke the kidnapping statute (G.S.1959 Supp. 21-449). The instruction was as follows:
'Section 21-449 is the basis for the complaint as set out in Count Two of the Information and reads as follows:
* * *"
In addition to the foregoing, G.S.1959 Supp. 21-449 further provides:
'If there is a plea of guilty the court shall determine which punishment shall be inflicted, and in doing so shall hear evidence * * *.' (Our emphasis.)
Mention should perhaps be made, too, that, as in all criminal cases, a verdict form of 'not guilty' was submitted to the jury in this case.
The trial court also submitted to the jury a typewritten form of verdict which had merely to be dated and signed by the jury foreman. It reads:
"We, the jury impaneled and sworn in the above entitled case, do upon our oaths, find the defendant, Eddie D. Cox, guilty of kidnaping in the first degree and further find that the kidnapped person was unharmed and direct that said defendant be confined in the penitentiary for not less than twenty years as provided by law." (Our emphasis.)
This verdict form was returned by the jury. Under 21-449 and the uncontradicted and undisputed evidence, which showed that Koberstein was shot in the arm with a bullet from defendant's revolver while standing just outside the...
To continue reading
Request your trial
-
Pacheco v. State
...1951); United States v. Carruthers, 152 F.2d 512 (7th Cir. 1945); Hammons v. People, 153 Colo. 193, 385 P.2d 592 (1963); State v. Cox, 188 Kan. 500, 363 P.2d 528 (1963); Briggs v. United States, 221 F.2d 636, (6th Cir. 1955); King v. United States, 25 F.2d 242 (6th Cir. 1928); People v. Pur......
-
Cox v. State
...in count two that the kidnapping occurred without harm to the victim. Petitioner appealed his conviction to this court (State v. Cox, 188 Kan. 500, 363 P.2d 528) and was granted a new trial on the ground that the trial court had submitted an improper verdict form to the The objectionable ve......
-
Cox v. State
...of kidnaping in the first degree but stated that the kidnaping occurred without harm to the victim. On appeal to this court (State v. Cox, 188 Kan. 500, 363 P.2d 528) petitioner was granted a new trial because an improper form of verdict was submitted to the On September 8, 1961, petitioner......
-
Cox v. Crouse, 9122.
...on the assault count. Appellant's appeal to the Kansas Supreme Court resulted in a reversal and granting of a new trial (State v. Cox, 188 Kan. 500, 363 P.2d 528), upon the ground that the trial court was unwarranted in submitting the verdict form allowing a finding of "no harm" when the un......