State v. Hickock and Smith

• Decision Date: 08 July 1961
• Docket Number: No. 42068,42068
• Citation: 188 Kan. 473,363 P.2d 541
• Parties: STATE of Kansas, Appellee, v. Richard Eugene HICKOCK and Perry Edward SMITH, Appellants.
• Court: Kansas Supreme Court

Page 541

363 P.2d 541

188 Kan. 473

STATE of Kansas, Appellee, v. Richard Eugene HICKOCK and Perry Edward SMITH, Appellants.

No. 42068.

Supreme Court of Kansas.

July 8, 1961.

Syllabus by the Court.

In a joint appeal by two defendants from convictions of murder in the first degree the record is examined, and it is held that, under the facts, conditions and circumstances, and for reasons set forth at length in the opinion, the judgments rendered and sentences imposed against each defendant must be affirmed.

Dale H. Corley, Garden City, for defendant Richard Eugene Hickock.

A. M. Fleming, Garden City, for defendant Perry Edward Smith.

Robert E. Hoffman, Asst. Atty. Gen., and Duane E. West, Sp. Counsel, Garden City, and William M. Ferguson, Atty. Gen., on the brief, for appellee.

PARKER, Chief Justice.

This is a joint appeal by two defendants who were jointly charged, tried, convicted and sentenced for four separate crimes of murder in the first degree (G.S.1949, 21-401).

The events giving rise to the criminal prosecution in question, the proceedings had therein prior to and during the trial, the result of the trial, and post trial matters leading up to perfection of the instant appeal, all of which are incontrovertible, are essential to a proper understanding of the appellate issues involved. Therefore those matters, as established by the record, will be detailed at the outset.

At approximately 1 o'clock a. m. on November 15, 1959, Herbert Wesley Clutter, a prominent resident of Finney County, Kansas, his wife Bonnie Mae Clutter, his daughter Nancy Mae Clutter, sixteen years of age, and his son Kenyon Neal Clutter, fourteen years of age, were brutally murdered in their farm home near Holocomb, Kansas, which is approximately seven miles west of Garden City, the county seat.

On December 30, 1959, defendants Richard Eugene Hickock and Perry Edward Smith were arrested at Las Vegas, Nevada. Subsequently, and on January 6, 1960, they were returned to Garden City by officers of the Kansas Bureau of Investigation where they had been charged jointly with four counts of first degree murder by a complaint filed by the County Attorney of Finney County.

The day after their return the defendants were brought before the judge of the county court of Finney County, where they were afforded an opportunity to request and have a preliminary hearing on the charges set out in the warrant issued on the complaint. At that time both defendants waived preliminary hearing and thereupon were bound over to the district court of Finney County for trial.

On January 8, 1960, both defendants were brought before the district court where Harrison Smith and A. M. Fleming, both experienced, qualified, competent and respected members of the Kansas Bar, were appointed to represent defendants Hickock and Smith, respectively. At that time the clerk of the district court delivered certified copies of the information, which had been filed against the defendants on that day and charged them jointly with four counts of first degree murder, to each defendant and to their attorneys.

On January 29, 1960, the defendants both filed motions requesting the court to appoint a commission to examine the defendants to determine whether their mental status was such they could legally be tried (G.S.1949, 62-1531) and to determine their sanity at the time of the commission of the alleged crime (G.S.1949, 62-1532). After argument both motions were sustained insofar as they requested the appointment of a commission, under the provisions of 62-1531, supra, to determine whether the defendants were insane, imbeciles or idiots, and unable to comprehend thier positions and aid in their defense.

Following action as indicated the court appointed John O. Austin, M.D., R. J. Maxfield, M.D., and Gust H. Nelson, M.D., all of whom are conceded to be reputable, qualified, experienced and respected practicing physicians and surgeons of Finney County, to act as a commission to examine each defendant. Thereafter, in conformity with G.S.1949, 62-1531, this commission examined the defendants and filed separate reports with the court stating, in substance, that after having examined the defendants it found each defendant was not insane, an idiot or an imbecile, and that each such defendant was able to comprehend his position and to make his defense.

On February 9, 1960, the defendants accompanied by their respective attorneys were brought before the court and, upon arraignment, each defendant chose to stand mute, whereupon the court entered pleas of not guilty on behalf of each defendant on each of such counts. Thereupon, it having been previously indicated that separate trials were desired, the court announced both cases would be set for trial by jury in the district court of Finney County on March 22, 1960, at 10 a. m., and that the court would proceed, at the request of the state, with the trial of Perry Edward Smith first.

On February 25, 1960, the state filed a motion asking permission to endorse the names of additional witnesses upon the information. The record discloses no objection to this motion and it was sustained.

On March 1, 1960, each defendant filed a motion to quash the jury panel on grounds of irregularities in the selection of such panel. This motion was heard and sustained by the court on March 2. Thereafter, and on the same date, it proceeded to name a new jury panel under G.S.1949, 43-128.

On March 4, 1960, the state filed its motion for permission to correct names incorrectly listed in the information. On presentation of this motion on March 9 counsel for each of the defendants announced they had no legal objection to the granting of such motion, whereupon it was sustained.

On March 14, 1960, Hickock filed a motion for continuance upon the grounds that Walter S. Hickock, his father, was ill and could not testify. Upon a hearing, and after pointing out it appeared the condition of the witness in question was such his testimony could be taken by deposition or that he might be able to personally appear at the trial, the court denied this motion.

Early in the proceedings Hickock had demanded a separate trial. Later, and on March 9, 1960, after the endorsement of additional witnesses on the information by the state, including both defendants, he announced in open court that, after consultation with his counsel, it was his desire to be tried with his co-defendant Smith. The court then inquired of Smith if that was his desire also and received an affirmative answer. Thereupon the court announced in substance that in conformity with the desires of the defendants there would be a joint trial, which would commence on March 22, 1960.

On the date last above indicated the case was called for trial. Each defendant and the state announced ready for trial. The court then announced that the trial was apt to be a protracted one and that it deemed it advisable to select two alternate jurors, in addition to a jury of twelve men. No objection being made to this suggestion jurors were interrogated until twelve men had been selected as satisfactory to the parties to try the cause, without either the defendants or the state having exhausted the peremptory challenges allowed by statute (G.S.1949, 62-1402 and 62-1403). The court then asked the state and each defendant if they desired to waive further peremptory challenges and received an affirmative answer from all such parties. Thereupon the jury of twelve men, then in the jury box, was duly empaneled and sworn to try the cause. Thereafter the alternate jurors were examined and two were selected by the parties as satisfactory. The court then inquired if the parties desired to waive their peremptory challenges to the alternate jurors and, having received affirmative answers, the two jurors so selected were sworn to act as alternate jurors in the event their services were required.

Following the empaneling of the jury, the state proceeded to make its opening statement. Each defendant then elected to reserve the right to make an opening statement until after the state had presented its evidence. The state then adduced its evidence and rested. Thereafter defendants' counsel made their opening statements and evidence was adduced on behalf of each such defendant. Neither defendant testified in his own behalf.

At the close of all evidence the court gave the jury full and complete written instructions, to which no objections were made, and, after closing arguments, directed it to proceed, in charge of a sworn bailiff, to the jury room to consider its verdicts. In due course the jury returned separate verdicts finding each defendant guilty of murder in the first degree on all of the four counts charged in the information and, under the provisions of G.S.1949, 21-403, fixed the punishment for each defendant on each count at death.

Following the return of the verdicts each defendant filed a motion for a new trial. No affidavits or testimony were offered in support of these motions and they were heard and overruled. Thereafter the trial court approved the verdicts and each defendant was sentenced to be hanged. Thereupon the defendants jointly perfected the instant appeal and this court, pursuant to their joint application, issued an order staying execution of their respective sentences (G.S.1949, 62-2414) pending its determination.

With what has been heretofore related all that is required to round out the factual picture, necessary to insure a full and complete understanding of the issues raised on appeal, is a highly summarized statement of the evidence adduced by the state, all of which may be said have been wholly uncontroverted and undisputed by any other evidence of record to the contrary. Omitting many of their gruesome details and cumulative features, the facts established by such evidence may be stated thus:

While serving time in the Kansas State Penitentiary on another sentence defendant Hickock celled with an...