State v. Criger

• Citation: 151 Kan. 176,98 P.2d 133
• Decision Date: 27 January 1940
• Docket Number: 34514.
• Parties: STATE v. CRIGER.
• Court: United States State Supreme Court of Kansas

98 P.2d 133

151 Kan. 176

STATE v. CRIGER.

No. 34514.

Supreme Court of Kansas

January 27, 1940

Syllabus by the Court.

Evidence sustained conviction of murder in the second degree.

In murder prosecution, testimony of witnesses respecting their conversations with accused after his arrest was not incompetent because accused was not specifically told of his constitutional rights and was not at time represented by counsel where statements were voluntarily made.

In homicide prosecution, testimony as to movements of accused in afternoon and night of day preceding homicide and the morning of homicide not directly connected with the shooting was properly admitted.

In prosecution for murder of wife, testimony concerning remote altercations between defendant and his wife not connected directly with shooting was properly admitted where such testimony was offered in rebuttal after defendant had testified that he and his wife had never had any serious trouble.

In murder prosecution, testimony as to results of experiment in shooting shotgun used in homicide at various distances was not inadmissible because not made under supervision of court or in presence of accused and because it was not shown to have been made under conditions substantially similar to those under which gun was fired at time of killing, where purpose of experiment was to determine spread or pattern of the shot when gun was fired at various distances from target.

In murder prosecution, targets used in experiments in shooting off shotgun used in killing to determine spread or pattern of the shot when gun was fired at various distances from the target were properly admitted.

In murder prosecution wherein defendant claimed that shotgun was accidentally discharged as he took it out of pantry testimony of witnesses to whom defendant had stated manner in which he picked up gun and how he turned where he was standing when gun went off, as to result of experiment conducted in home in manner indicated by defendant, to effect that shot would have gone in a different position, was properly admitted.

A new trial in murder prosecution on ground of newly discovered evidence was properly refused where there was nothing particularly new in evidence and there was no reason to believe that it would produce a different result.

In a prosecution for murder, the record is examined, and it is held: (1) The evidence was sufficient to support the verdict of murder in the second degree; (2) that there was no material error in the admission of evidence; (3) that the court did not err in overruling defendant's motion to be discharged on the opening statement of counsel for the state or his motion to be discharged made at the close of the state's evidence, or his motion for a new trial.

Appeal from District Court, Brown County; C. W. Ryan, Judge.

Paul F Criger was convicted of murder in the second degree, and he appeals.

Walker F. Means and W. E. Archer, both of Hiawatha, for appellant.

Jay S Parker, Atty. Gen., A. B. Mitchell, Asst. Atty. Gen., and Harry E. Miller, Co. Atty., of Hiawatha, for appellee.

HARVEY Justice.

Paul F. Criger was charged with murder in the first degree of his wife at their home in Morrill, Kansas, on the morning of March 13, 1939. He was tried and found guilty of murder in the second degree and sentenced to imprisonment for fifteen years. He has appealed and contends that the verdict is not sustained by the evidence; that the trial court erred in several important rulings on the admission of evidence; in overruling his motion to be discharged upon the admissions and statements of counsel for the state made in his opening statement; in overruling his motion to be discharged, made at the conclusion of the state's evidence; and in overruling his motion for a new trial.

We shall consider first whether the evidence was sufficient to sustain the verdict. The facts, not controverted, or which the jury and trial court were entitled to believe, may be summarized as follows: At the time of the tragedy defendant was 22 years of age. He had lived at Morrill about seven years. Prior to that time he had lived at Marysville, Pickering and Trenton, Missouri. On December 22, 1937, he was married to Ida May Lufler, about his own age, who had been reared in the vicinity of Morrill. For the first ten months of their married life the couple made their home with defendant's mother, Mrs. Green, who lived in Morrill. Then they bought a small house situated in the same block with the home of his mother, on which he had made a down payment and was making periodical payments. The block in which these residences are situated is near the edge of the town, and while there is quite a little space between the houses, there is no other building in the space. Defendant was a W. P. A. worker. The house purchased by defendant, and in which he and his wife were living at the time of the tragedy, had two rooms on the first floor and a bedroom upstairs. Its outside dimensions were 14X24', and on the interior it was divided into two rooms, the west front room being a little larger than the east room, used as a kitchen and dining room. The front room was carpeted; it was furnished with a davenport near the north side of the room, a table near the south side, a stove near the east side, and chairs. Near the south side of the partition between the two rooms a door from the front room opened into the stairway, two and one half feet wide. Directly north of this stairway was the door, two and one half feet wide, between the front room and the kitchen; otherwise there was no opening in the partition. In the kitchen east of the stairway was a pantry, the width of the stairway, two and one half feet north and south and about five or six feet long, extending to the east wall of the room. There was a door on the south side into the pantry, hung on the east wall of the room, which opened to the north. In this pantry was a 22 rifle and a sawed-off 12-gauge shot gun. There were also pans and various articles usually kept in such a pantry. The furniture of the kitchen consisted of a dining table, placed against the east wall, with a chair to the north and another to the south of it, a refrigerator near the center of the room but against the north wall, a chair directly west of it, a wash stand near the northwest corner of the room, an oil cook stove near the west wall, the south end of which was about six inches from the north edge of the door between the two rooms, a kitchen cabinet on the south side of the room against the wall which formed the partition between the kitchen and the stairway and pantry, and a chair directly west of the cabinet. This was a white enameled kitchen cabinet about 42"' long and 26"' wide, to the height of 32"', where it divided into two parts, consisting of a table, about 15"' wide the length of the cabinet, and the cabinet part, about 11"' wide, extending 35"' higher.

Shortly after five o'clock the morning of the tragedy defendant went to the door of his mother's residence, pounded vigorously, and called to her and told her that Ida May had been accidentally shot, and asked her to come at once. She hurriedly threw on a robe and she and defendant started to his home. At sometime he made a remark to the effect that if she died he would kill himself. They spoke of the need to get a doctor. Mrs. Green went on to defendant's house and there found his wife lying on her back on the floor in the front room, her head near the front door, which was open. She was dead. Mrs. Green took a blanket off the davenport and covered her feet and legs and her body up to her waist, and ran to the nearby home of Alfred Miller for help, and Mr. and Mrs. Miller went to defendant's home. She or Mr. Miller also called the night watchman, George Hollens, and perhaps others, and Mrs. Green went back to defendant's house. In the meantime defendant had jumped into his car and driven a few blocks to the home of Doctor Stapp, knocked on his door and called to him and said his wife was shot, and asked the doctor to come. The doctor went to the door and told him he would go in his own car as soon as he was dressed. He did so and arrived at the house about 5:35 o'clock. He found defendant's wife lying on the floor on her back, with her head near the front door. She was dead. The doctor could not tell positively how long she had been dead; the body still was warm. He had her picked up and placed on the davenport, examined her and found the cause of death was a gunshot wound about the center of the abdomen, about two inches below the umbilicus. The size of the wound was about an inch and a quarter in diameter; the edges of the wound were ragged. The doctor called the coroner, who together with the sheriff and county attorney went to defendant's home, reaching there about seven o'clock in the morning.

When Doctor Stapp got there that morning defendant's mother, Mrs. Green, Mr. Hollens, Mr. Miller and his wife, were in the front room. Other persons were in the kitchen. Defendant was there, perhaps a part of the time outdoors. At Mrs. Green's request Mr. Hollens took charge of the shot gun, which he found lying on the kitchen floor five or six inches northeast of the northeast corner of the kitchen cabinet. There was a hot coffee pot over a burner of the oil stove. Someone, perhaps Mrs. Green, turned the burner out. There was a bowl heaped full of potatoes, peeled and ready to be cooked, sitting on the table of the kitchen cabinet. Various witnesses estimated this to be of the height of five to seven inches.

After the coroner arrived the undertaker was called and the body of defendant's wife was taken to the mortuary and prepared for burial. An examination of the wound was made at the mortuary. No powder...