State v. Hale
| Decision Date | 12 June 1971 |
| Docket Number | No. 45898,45898 |
| Citation | 207 Kan. 446,485 P.2d 1338 |
| Parties | The STATE of Kansas, Appellee, v. James J. HALE, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record is examined in an action wherein the defendant was convicted on charges of first-degree kidnaping, first-degree robbery and grand larceny, and for reasons appearing in the opinion it is held: (1) The verdict was sustained by substantial competent evidence, (2) the court did not err in its instructions to the jury, (3) submission to the jury of the charge of first-degree murder id not result in prejudicial error and (4) the court did not err in limiting the cross-examination of a state's witness.
Ray Hodge, Wichita, argued the cause and was on the brief, for appellant.
David P. Calvert, Deputy County Atty., argued the cause, and Vern Miller, Atty. Gen., Keith Sanborn, County Atty., and James W. Wilson, Deputy County Atty., were with him on the brief, for appellee.
This is an appeal by the defendant, James J. Hale, from a conviction on charges of first-degree kidnaping, first-degree robbery and grand larceny. The points raised on appeal relate primarily to the sufficiency of the evidence and the correctness of instructions. Sentences of life imprisonment were imposed on each of the three counts, all to run concurrently.
Throughout this opinion the appellant will be referred to as the defendant, or Hale, and the appellee as the state.
Because of the issues presented in this appeal, we are compelled to relate the facts in some detail.
The victim was an elderly gentleman by the name of Claude E. Thrush who was employed as a part-time watchman for a Wichita concern. He also spent some of his time assisting his daughter, Alfreda, in the operation of her tavern which was known as Angel's Lucky Seven.
On Monday evening, May 5, 1969, Alfreda had gone home early, leaving her father to look after the tavern and to lock up when it came time to close.
On the same evening the defendant, often referred to in the record as Junior, and his brother Eugene, or Gene, betook themselves to Angel's Lucky Seven-after having first attempted to borrow money from an employee of a nearby plant. After they arrived at the tavern the brothers began to cadge money with which to buy drinks. About closing time Gene kept falling asleep on the bar and the defendant then asked Mr. Thrush if he would take them home.
The Lucky Seven was closed shortly after midnight. From the cash register, Mr. Thrush removed all the weekend receipts, which included a number of ten and twenty dollar bills, and placed them in a money sack. He took the receipts with him and was last seen alive getting into his Rambler station wagon, in which the defendant was the sitting in the front passenger seat and Gene was occupying the seat behind.
The evidence showed it was the invariable custom of Mr. Thrush, upon leaving the tavern, to go directly home, a matter of only a few blocks. However, this evening his pattern was broken, and he never made it home. Neither did he deliver the Hale brothers to their place of abode, a couple of blocks from his own.
About 12:30 a.m., May 6, 1969, the Thrush car was seen proceeding slowly north on Arkansas to 53d Street, many blocks north of where either Thrush or the Hales lived. At 53d the car turned west. Three men occupied the car at that time, two in the front seat and one in the back.
The Hales, both Junior and Gene, next turned up in Thrush's station wagon between 1:00 and 1:30 a. m. at a Knights of Columbus Hall at Andale, Kansas, a small community in Sedgwick County some twenty miles west of Wichita. At this time Thrush was not in his car. The brothers asked to use the restroom and inquired where they might purchase some gas.
About 2:25 a. m. the defendant appeared at a farm house in rural Sedgwick County where he purchased some gasoline for the car from a farm woman. He paid for it with two one-dollar bills.
At approximately 4:30 a. m. the Hale brothers arrived on foot at a truck-stop restaurant at the junction of U. S. 54 West and the Cheney road, where they ordered breakfast. They said they had been fishing, that the had broken an axle on their car and they wanted to get to the city for parts. While waiting for breakfast to be prepared they played the music machine, to the tune of about three dollars, and one of them made a long distance call to Seattle. After paying for their breakfast with a five-dollar bill, one of the Hales offered to buy the owner a steak breakfast, but his offer was declined. They also offered to pay him for taking them to Wichita.
A farmer who lived near Cheney picked the Hales up near the truck stop and took them into Wichita where he let them out near a bus stop. They told their benefactor they had been fishing, had broken an axle on their dad's truck and wanted to catch a bus to get some parts. As they got out of the car a gold Masonic ring, later identified as belonging to Thrush, rolled out from underneath the passenger seat. The defendant claimed the ring as being his.
We next find the brothers being transported by taxi to the Knotty Pine Inn. This was between 8:00 and 8:30. They told the driver they had been driving a truck which broke down and they wanted to be near a highway so they could hitchhike to Holly, Colorado, to get repairs. The two men spent considerable time in the West Street Bar, next to the Knotty Pine, where they engaged in buying beers for themselves and two of their cronies, one having the name of Heavy. They paid for the drinks with ten and twenty dollar bills.
Later that morning all four drove to Salina in Heavy's car, where they continued their drinking spree to the point of intoxication. A Salina taxi driver testified the Hales had several five-dollar bills. Eventually the defendant passed out. When arrested by Salina police that evening he had more than fourteen dollars on his person.
The body of Mr. Thrush was found early in the morning after his disappearance. It was in a ditch some twelve miles west of his home. His ring, his watch, his car and the tavern receipts were missing. According to medical testimony the cause of his death was acute heart failure. The body appeared to have been dragged from a car into the ditch. An examination of the body disclosed a laceration on the ring finger and an injury to the face above the right eyebrow. There was medical evidence that the facial injury was ante-mortem in its origin and had occurred very shortly prior to death. This midical opinion was based on the evidence of swelling and bleeding beneath the skin which indicated that there was circulation going on at the time of the injury.
In addition to what we have already related, there was evidence that the defendant's boots matched the heel impressions found at the scene where the body of the deceased was found. Dirt samples taken from the boots were compared with earth taken from the scene and were found to have sufficient similar characteristics to have come from the same area. Fingerprints lifted from the Rambler were very similar to those of the defendant, although positive identification could not be made because of the quality of the prints.
Three medical witnesses were called by the defendant and testified the deceased had died a natural death from heart failure. Hale himself did not testify.
The defendant's first item of complaint is that the verdicts are not supported by substantial competent evidence. We are of the opinion this contention cannot be sustained. Although it may be true that direct evidence of guilt is lacking, there is a damning chain of circumstantial evidence extending from the time Mr. Thrush left Angel's Lucky Seven Tavern to the time this defendant was arrested in Salina.
It is well established that a conviction, even of the gravest offense, may be sustained by circumstantial evidence. (State v. Kennedy,124 Kan. 119, 257 P. 726.) This court has even said that inferences drawn from admitted or well authenticated facts may be stronger and more convincing than the testimony of witnesses who, albeit unwittingly, may not have been telling the truth. (State v. Evans, 115 Kan. 538, 541, 224 P. 492.) This declaration accords with the concept, generally held, that circumstantial evidence may be more trustworthy than eyeball testimony. (30 Am.Jur.2d,...
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