State v. Dunnan, 49295

• Decision Date: 21 January 1978
• Docket Number: No. 49295,49295
• Parties: STATE of Kansas, Appellee, v. Austin Shannon DUNNAN, Appellant.
• Court: Kansas Supreme Court

Page 1068

573 P.2d 1068

223 Kan. 428

STATE of Kansas, Appellee, v. Austin Shannon DUNNAN, Appellant.

No. 49295.

Supreme Court of Kansas.

Jan. 21, 1978.

Syllabus by the Court

Upon review of a conviction of murder in the second degree and felony theft, it is held that there was substantial evidence to establish malice; that the act of the magistrate in binding the defendant over for trial, and the setting of high bail, do not constitute reversible error; but that the failure of the trial court to give clear and accurate answers to questions from the jury during deliberations, when the jury was obviously confused as to the elements of the alternative offenses which the jury was considering, constitutes prejudicial error and requires a reversal of the murder conviction; the felony theft conviction is affirmed.

Camilla Klein Haviland, Dodge City, argued the cause and was on the brief for the appellant.

Judd Dent, County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for the appellee.

MILLER, Justice:

Austin Dunnan was convicted by a jury of murder in the second degree, K.S.A. 21- 3402, and felony theft, K.S.A. 21-3701. He appeals, and raises four points: that the magistrate failed to make findings sufficient to justify his action in binding the defendant over for trial; that the appearance bond fixed for the defendant was excessive and deprived him of his constitutional right to bail; that there was not sufficient evidence of malice to support the murder conviction; and that the trial court committed prejudicial error in the manner in which it answered questions from the deliberating jury.

The facts disclosed by the record are these. Late in the afternoon of January 14, 1977, Dunnan met Mike Bartlett in the Blacksmith Tavern in Dodge City, Kansas. Bartlett expressed an interest in buying a rifle, so Dunnan and Bartlett went to Dunnan's apartment where Dunnan displayed a rifle which he wished to sell. Dunnan warned Bartlett that the rifle was loaded. When Bartlett started to reach for one of two guns in a rack on the wall, Dunnan said that they were loaded, so Bartlett left them alone. The sale of the rifle was agreed upon, and the two men returned to the Blacksmith Tavern.

Dunnan met other friends, played pool, drank beer, and danced. About midnight Dunnan and a friend, Robyn Ross, left the Blacksmith in Ross's car, stopped for a few moments at the home of friends, then went to Dunnan's apartment. Dunnan went to the kitchen to fix something to eat; Ross took a .22 caliber rifle off of the rack on the wall and shot out the kitchen light above Dunnan's head. Dunnan admonished Ross, and then replaced the light bulb. Ross reloaded the rifle and fired three or four more rounds into the kitchen where Dunnan was working. This upset Dunnan. He grabbed a .410 shotgun from the wall rack, stepped behind Ross, and told Ross to put the gun down. Ross, who appeared to be trying to load the rifle, said "That gun is not loaded." Dunnan said, "You want to bet it is not loaded?" Then Dunnan cocked the shotgun, put his finger on the trigger, and fired. The charge struck Ross in the head, killing him instantly.

Dunnan took Ross's money, his billfold, and his car, and left town. Ross's body was not discovered until January 22, seven days after the shooting. Dunnan was arrested at the home of friends in Tucson, Arizona, on January 28. Ross's car was parked near the place of Dunnan's arrest.

Defendant's first claim of error is that the magistrate failed to make the necessary and proper findings to bind the defendant over for trial. K.S.A. 1976 Supp. 22-2902(3) provides that:

". . . If from the evidence it appears that a felony has been committed and there is probable cause to believe that a felony has been committed by the defendant the magistrate shall order the defendant bound over . . ."

The magistrate who heard the preliminary examination found "that the criminal act of Second Degree Murder was probably committed, and I am therefore binding him over to the District Court, Judge Robert M. Baker, for trial on that charge, and also on the second charge of theft of a car."

This was error, but we hold that it was not prejudicial error. We have examined the transcript of the preliminary examination, consisting of some 60 pages, and find that the evidence before the magistrate would adequately support the statutory findings; further, it is evident from the magistrate's expressed findings that it appeared to him that the felonies charged had been committed. By binding the defendant over for trial, he made the tacit if unexpressed finding that there was probable cause to believe that those offenses had been committed by the defendant.

The better practice would have been for the magistrate to articulate his findings in the wording of the statute or, where he did not, for the state to move to amend the findings. However, on the record before us, we do not believe the defendant was prejudiced. He was fully informed of the nature and character of the offenses with which he was charged, and was apprised of the sort of evidence which would be offered against him at trial. We recently discussed at length the preliminary examination and the limited function of the magistrate in conducting it. State v. Boone, 218 Kan. 482, 543 P.2d 945, cert. den. 425 U.S. 915, 96 S.Ct. 1515, 47 L.Ed.2d 767. A repetition of what we said in Boone is not necessary here.

Defendant next contends that the bail set by the magistrate $250,000 was so high and excessive that it amounted to no bail at all, and constituted a deprivation of his right to bail under the Eighth Amendment to the United States Constitution, under § 9 of the Bill of Rights of the Constitution of Kansas, and under K.S.A. 22-2801. The bond fixed was indeed high, but the offense was most serious. We find no written motion to reduce bond, and if an oral motion was made, we find no record of it. Also, we find no indication that the defendant filed an application for writ of habeas corpus, an appropriate, efficacious, and always available method for seeking release from unlawful custody. See Bloss v. State, 11 Kan. 462. We hasten to say that such an application should not be made until a motion to reduce bond has been heard and ruled upon by the the trial court.

In the case before us we cannot say that the court below abused its discretion at the time bail was fixed. We find no error in this regard which would justify a reversal of the conviction. Defendant has been given credit for all of the time he was in custody, and he makes no claim or showing that his defense was in any way hampered by his custody status. The matter of pretrial release is now moot.

Defendant next claims that there was not sufficient evidence of malice to support his conviction of murder in the second degree. Malice, as we have often said, consists of the intentional doing of a wrongful act without just cause or excuse. State v. Childers, 222 Kan. 32, 563 P.2d 999; State v. Wilson, 215 Kan. 437, 524 P.2d 224; State v. Jensen, 197 Kan. 427, 417 P.2d 273. Malice may be established by circumstantial evidence, as we noted in State v. Sparks, 217 Kan. 204, 209, 535 P.2d 901, since elements such as malice and intent exist only in the mind of the perpetrator of the deed, and direct evidence may not exist. Also, malice may be inferred...