State v. Fouts

• Citation: 169 Kan. 686,221 P.2d 841
• Decision Date: 31 August 1950
• Docket Number: No. 37825,37825
• Parties: STATE v. FOUTS.
• Court: United States State Supreme Court of Kansas

Page 841

221 P.2d 841

169 Kan. 686

STATE v. FOUTS.

No. 37825.

Supreme Court of Kansas.

Aug. 31, 1950.

Syllabus by the Court

1. On appellate review of the sufficiency of evidence to sustain a conviction of murder, where it appears the jury has been properly instructed and the verdict approved by the trial court, the function of this court is limited to ascertaining whether there was basis in the evidence for a reasonable inference of guilt. Following State v. Murphy, 145 Kan. 242, 65 P.2d 342, and State v. Hunter, 50 Kan. 302, 32 P. 37.

2. To sustain a conviction of murder based on circumstantial evidence the state is not required to adduce evidence eliminating all other persons as possible perpetrators of the crime.

3. In prosecutions for homicide it is the duty of the trial court to instruct the jury, not only as to the offense charged but as to all lesser offenses of which the accused might be found guilty under the information and upon the evidence adduced, even though such instructions have not been requested or have been objected to.

4. The general rule is that prior statements of a witness, consistent with his testimony at the trial, are not admissible in corroboration of his testimony unless he has been impeached or his credibility as a witness has been attacked.

5. The rules and principles of law relating to and governing the right of a party to corroborate a witness by proof of prior consistent statements made to third persons stated, discussed, and applied.

6. The record in a homicide prosecution wherein defendant was convicted of murder in the second degree examined and, it is held: (1) The defendant's demurrer to plaintiff's evidence and his motion for a directed verdict were properly overruled; (2) Under the evidence an instruction on the crime of murder in the second degree was required; (3) The trial court erred in permitting the state to introduce evidence, over the objection of defendant, corroborating the testimony of an unimpeached witness; (4) Since such witness had not been impeached the testimony so admitted was clearly hearsay and incompetent and so prejudicial to the rights of the defendant as to require a reversal of the judgment and the granting of a new trial.

Payne H. Ratner and Eugene L. Pirtle, both of Wichita, L. E. Goodrich, Jack L. Goodrich, both of Parsons, Ora D. McClellan, Louise Mattox and Mearle D. Mason, all of Wichita, on the brief, for appellant.

J. Logan Shuss, County Attorney, Parsons, and Edward Rooney, of Topeka, Harold R. Fatzer, Attorney General, C. Harold Hughes, Assistant Attorney General, and John F. Amos, Assistant County Attorney, Oswego, on the brief, for appellee.

PARKER, Justice.

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

On the morning of April 22, 1949, Grace Nutt, who was 36 years of age and living with her husband, William H. Nutt, was murdered in her farm home on highway No. 160, 10 miles east of Parsons, Kansas, in Labette county, between the hours of 8:20 a. m. and 10:20 a. m. Her death, which occurred at 1:20 p. m. on that day, was the direct result of two shots fired from a .38 caliber pistol. Under the evidence there can be no question but what the person who killed her came to the home and found Mrs. Nutt in the kitchen at a time when the screen door of that room precluded ready entrance because it was fastened by a hook. The first shot, which grazed Mrs. Nutt's right temple and knocked her down, was fired through the screen door before an attempt was made to enter the kitchen. Thereafter, whoever fired it forcibly opened the door, entered the kitchen, and then at close range fired a second and fatal shot into the back part of her head. There were no eye witnesses to the crime and Mrs. Nutt who remained unconscious until she died was unable to identify her assailant.

What has just been related is not in controversy. We turn now to facts that are, pausing as we do so to state that extended reference to the sordid factual situation disclosed by the evidence will neither benefit posterity nor add anything to this opinion and point out that for that reason our review of the record will not only be summarized but is intended only to include such facts as are absolutely essential to a discussion of errors assigned as grounds for reversal of the judgment.

Within a short time after Mrs. Nutt's death the law enforcement officials of Labette county issued a pick up order to take the defendant, William S. Fouts, who was a married man, 53 years of age, living in Parsons, and engaged in the gasoline transport business, into custody for questioning concerning the murder. He was apprehended about 4 p. m. of the day of the tragedy at his home where he had changed the clothes he had been wearing earlier in the day. Later he was charged with the crime of murder in the first degree to which charge, when arraigned, he entered a plea of not guilty.

In due time the cause came on for trial. A fair statement of the essential facts disclosed by the record, limited as we have heretofore indicated, can be stated as follows:

Beginning sometime in 1940, and continuing up until the day before the murder, the defendant and the deceased had been carrying on what they thought was a secret affair. Meetings between the two in the country and elsewhere in the community were frequent and concededly illicit. Apparently the relationship was congenial and restricted to the two until sometime in 1948 when Mrs. Nutt commenced to tire of the arrangement and bestow some of her affections upon other and younger men. The defendant became aware of the situation and commenced to trail the decedent. At times he complained of her conduct. On the afternoon of April 21, 1949, the day before the murder, and between the hours of 4 p. m. and 5 p. m., he caught her and a truck driver, one Vermillion, parked along a country side road several miles distant from her home. He drove up and engaged the pair in conversation. Twice Vermillion told the defendant, who appeared nervous and upset, to go away and leave the woman alone but he did not go. After some argument, during which Mrs. Nutt became somewhat nervous and agitated, and was observed to have been crying, the truck driver drove away leaving her alone with the defendant. There can be no question but what a quarrel ensued. However, it is apparent there was a reconciliation for later in the afternoon the defendant got into Mrs. Nutt's car and they were observed there by another neighboring farm lady, who drove by and saw them, in each other's arms. Thereafter Mrs. Nutt went to the home of her sister in Parsons for the purpose of obtaining some tomato plants for her garden. Her sister testified that she appeared to be nervous and excited. Later on, and on the same evening, her husband testified she appeared to be nervous and apprehensive. These facts had been communicated to the officers of Labette county before they issued the pickup order for the defendant.

When taken into custody for questioning the defendant was interrogated at considerable length. He denied all knowledge of the crime and finally signed a verified statement wherein he (1) stated that his truck driver Anderson was with him all the time on the morning of the homicide from 7:15 a. m. to 12:20 p. m., (2) denied he had ever had intimate relations with Mrs. Nutt, and (3) stated the only time he had seen her on the day preceding her death was at the hour of 10 o'clock in the morning. At the trial he repudiated his statement about having been with Anderson all of the morning of April 22nd and admitted that he left the latter in Parsons that morning and proceeded alone past the Nutt home shortly after 7 a. m. in his gasoline transport truck to Bronson's Service Station north of McCune, located about 4 miles east and 2 miles north of such home, and that in returning to Parsons, also alone, he drove back past the Nutt home again, reaching Parsons in time to put in a telephone call at his own home to the Nutt home at 9:24 a. m. He said no one answered the call. His explanation for the call was that things did not look right at the Nutt home as he drove by it and that Mrs. Nutt had told him any time they did not she wanted him to check and then notify her sister, Mrs. Gunter. However, it is significant that when he received no answer to his call he made no attempt to investigate further and did not call the deceased's sister as he said he had agreed to do. On cross-examination he admitted he had had intimate relations with Mrs. Nutt on many occasions. During the trial he also admitted his statement to the effect he has seen her but once on April 21, and then in the morning, was false and, while he continued to deny there had been any quarrel between them, admitted he was present and participated in the Vermillion, Fouts, Grace Nutt incident to which we have heretofore referred.

The day following the homicide the defendant was advised the officers were going to take a paraffin test of his hands for the purpose of ascertaining whether such test would reveal gunpowder nitrate burns. While preparations were being made to make this test, and after he had been advised of its nature and purpose, he volunteered the statement that recently he had engaged in target practice at his brother-in-law's place at Edna where he had fired a pistol and a rifle. Nevertheless the officers proceeded with the test which, according to the testimony of persons who had experience in making such tests, disclosed nitrate on the defendant's right hand. Thereafter the officers investigated his target practice story and found it to be false. In fact at the trial he admitted its falseness.

In addition to the facts heretofore set forth the record reveals: That the defendant made divers other statements pertaining to his whereabouts on both April 21 and 22 which he later admitted were untrue; that one Garrettson, a witness for the state, testified that while fixing a flat...