State v. Germany, 38404
| Decision Date | 03 July 1952 |
| Docket Number | No. 38404,38404 |
| Citation | 173 Kan. 214,245 P.2d 981 |
| Parties | STATE v. GERMANY. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Considering the record in a case in which appellant was found guilty of murder in the first degree and sentenced to death, it is held: The court committed no error in the admission of evidence, in the instructions given to the jury, or upon any other point concerning which appellant complains.
Elisha Scott, Sr., and Charles S. Scott, both of Topeka, argued the cause, and John J. Scott, of Topeka, on the briefs, for appellant.
Harold H. Harding, County Atty., of Kansas City, argued the cause, and Harold R. Fatzer, Atty. Gen., and Paul Wilson, Asst. Atty. Gen., and J. Milton Sullivant, Asst. County Atty., and Francis J. Donnelly, Asst. County Atty., both of Kansas City, on the briefs, for appellee.
Appellant was duly charged by an information filed in the district court of Wyandotte county with the crime of murder in the first degree in shooting and killing David W. Gray. Upon a trial the jury found him guilty as charged and fixed the punishment at death. Defendant has appealed and contends that the court erred in (1) overruling his motion for a new trial; (2) that the verdict is contrary to law and not sustained by the evidence; (3) that the court erred in refusing to instruct upon second degree murder and the several degrees of manslaughter; (4) that the court gave other erroneous instructions; (5) that a purported written confession and various statements made by defendant were involuntarily given and the court erred in admitting various incriminating evidence; and (6) that defendant was prejudiced by certain remarks made by counsel for the state in his closing argument.
A brief history of the court proceedings may be given. On October 31, 1947, the county attorney filed a complaint in the city court charging that Nathaniel Germany shot and killed David W. Gray on October 28, 1947, in Wyandotte county. A warrant was issued upon the complaint, a preliminary examination was held on November 21, 1947, and defendant was duly bound over for trial upon a charge of murder in the first degree. On November 26, 1947, the county attorney filed with the clerk of the district court an information charging appellant with the crime of murder in the first degree. When the case was about to go to trial defendant's counsel on January 19, 1948, applied to the court to appoint a commission to determine if defendant was mentally competent to go to trial. The court sustained the motion and appointed three medical doctors and specialists in the field of psychiatry to examine defendant for that purpose. The commission duly examined defendant and made a report in writing, which included a finding that defendant was then insane and not able to comprehend his position and to make his defense to the charge against him. Upon this report the court ordered that the defendant be committed to the state hospital for dangerous insane at Larned for safe keeping and treatment, and further ordered that upon his recovery he be returned to the district court of Wyandotte county to be placed on trial on the information filed against him. Defendant was forthwith delivered to the hospital named, where he was confined and treated until November 6, 1950, when the superintendent of the hospital advised the county attorney of Wyandotte county that defendant would be released from the hospital and delivered to the sheriff of Wyandotte county. The superintendent of the hospital included in his order of release a finding that the defendant 'was not afflicted with a psychosis of any type.' Defendant was removed and placed in the custody of the sheriff of Wyandotte county. In the meantime an amended information had been filed on January 20, 1948, the sufficiency of which is not challenged. On January 3, 1951, defendant's counsel filed a second application requesting the appointment of a commission to examine the defendant as to his mental condition and his capacity to comprehend his position and to make a defense to the charge contained in the information. The court granted this application and appointed a commission consisting of specialists in the field of psychiatry, who examined the defendant on January 5 and filed with the court its written report finding the defendant was sane, was able to comprehend his position and to make his defense to the crime with which he was charged. The trial began on January 8, 1951, and continued through January 19.
When the defendant was arraigned upon the information he stood mute and the court entered a plea of not guilty for him. After the jury was empanelled and sworn counsel for the state, out of the presence of the jury but in the presence of defendant and his counsel, advised the court that the state planned, among other evidence, to introduce evidence of certain oral and written statements made by defendant against his interest and amounting to a confession the admissibility of which would depend upon whether the statements were voluntarily made, and suggested to the court that a hearing be had before the court to determine the admissibility of that testimony before he made his opening statement, as he desired to refer to those matters if the testimony was held to be admissible. Defendant's counsel objected to having that hearing before the opening statement and urged that counsel for the state make the opening statement first and that the court hear the evidence as to the admissibility of the evidence later. That plan was followed. Counsel for the state made an opening statement which included a general statement as to all of the evidence the state planned to introduce. Thereafter the jury, having been duly admonished, as it was at all times when not actually sitting as jurors, and the court in the presence of defendant and his counsel heard the evidence pertaining to the admissibility of the evidence the state contemplated presenting having to do with the oral and written statements made by defendant. This consumed more than half a day. The court held the statements to have been voluntarily made and that they would be admissible in evidence. Counsel for defendant then made an opening statement in which, among other things, he said the evidence would show where defendant was the night of the homicide and also would show defendant was insane on October 28, 1947, and that he was insane prior thereto, the same as the commission found him to be in January, 1948, and in effect the evidence would show that he was not entirely normal at any time during his life, and specifically stated:
The trial proceeded. The record disclosed that David W. Gray was 18 years of age September 5, 1947. He was about 6 feet 2 inches tall, weighed about 150 pounds, and was the son of David F. Gray and his wife, who for many years had been highly respected citizens of Wyandotte county. David F. Gray had been a successful and well-known and well-liked teacher in the high school. At the time of the homicide, soon to be noted, David W. Gray had completed the high school work and was a student in the Kansas City Junior College. One of his classmates in the high school and in the Junior College was Mary Lou Johnson, and they had been keeping company for perhaps two years prior to the homicide.
The story of the homicide is not controverted. David W. Gray was not living, the defendant did not take the witness stand, and Mary Lou Johnson was the only witness who testified respecting the homicide. By the time of the trial she was married and her surname was Hughes. She testified to having been a classmate with David W. Gray in high school and in Kansas City Junior College and to having kept company with him for about two years; that on the evening of October 28, 1947, the sorority of the Junior College to which she belonged was having a meeting at the home of a Mrs. Modrell. Probably at school that day she had an appointment with David after the meeting at the Modrell home. It seemed to be a practice for the boys of the school to meet the girls at the close of their sorority meetings for whatever they had planned later in the evening. David met her there about 10 o'clock p. m., perhaps a few minutes later. They drove first to a place called 'Allen's Drive-In' on State Avenue, a few blocks east of 18th street. This was a place where the Junior College students met for visiting and for soft drinks. They had cokes, visited a few minutes and got in David's car, a 1937 Packard convertible sedan, the top of which was a light color, and drove about some of the streets of the western part of Kansas City and west on U. S. 40 perhaps two miles, where they turned onto a road known as Muncie Ridge Road, one of the several highways which connect U. S. 40 with State Highway 32, which is an east and west state highway a few miles south of U. S. 40. The Muncie Ridge Road is paved with macadam, has numerous curves, and, generally speaking, runs in a northeasterly-southwesterly direction between the two highways. On what we will call the south side of the road--really southeasterly--there was an unfenced area of timber and brush with no improvements. On the north side of the road quite a few houses had been built, for the most part fairly well separated. They stopped the car, with the right wheels on the shoulder and the left wheels on the pavement, at a point about 25 feet west of a house situated on the north side of the highway and 63 feet from the edge of the road, which had a light burning on the front. It was a pleasant evening for...
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