State v. Hoy
| Decision Date | 12 July 1967 |
| Docket Number | No. 44547,44547 |
| Citation | 199 Kan. 340,430 P.2d 275 |
| Parties | STATE of Kansas, Appellee, v. Frank HOY, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In a prosecution for first degree murder failure to instruct the jury on any lesser degree is not error if the evidence at the trial excludes theory of guilt on any lesser degree of the crime.
2. Error in overruling a challenge to a juror for cause is not ground for reversal under the fact set forth in the opinion when the juror did not sit in the case and if accused was not prejudiced thereby.
3. Failure of the state to obtain an electroencephalograph of the defendant to assist in determining his competency at the time of commission of the offense was not error.
4. Evidence of the negative results of a dermal nitrate test was submitted to the jury and the weight and effect thereof was properly left to the jury.
5. Voluntary statements elicited from the defendant were properly admitted in evidence under the yardstick of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.
6. An automobile in custody of a defendant, when arrested on probable cause, and known to be an instrumentality used in the commission of the crime may be properly seized and held as evidence together with the contents of the same.
7. The record in a prosecution for first degree murder is examined and it is held: The verdict of guilty is supported by substantial competent evidence and the order approving the same is affirmed.
Charles D. Anderson, Wichita, argued the cause, and David S. Knudson, Donald B. Clark and Marvin R. Appling, of Wichita, were with him on the brief, for appellant.
Keith Sanborn, County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and R. K. Hollingsworth, Deputy County Atty., were with him on the brief, for appellee.
Frank Hoy was convicted of first degree murder (K.S.A. 21-401). A jury imposed a penalty of life imprisonment (K.S.A. 21-403). The motion for new trial was denial and defendant appeals.
The charge grew out of the shooting and death of Sharon Hoy on July 8, 1965, in the first hour after midnight in the city of Wichita, Kansas. Sharon Hoy obtained a divorce from the defendant and custody of a minor child some nine months prior to her death. She was shot while driving her cream colored Renault automobile on North Estelle Street at approximately 12:22 a. m. Her assailant was driving a 1951 model Chevrolet automobile, dark blue in color. Four witnesses testified the Chevrolet overtook the smaller Renault, forced it over the right street curbing and then proceeded past it and out of sight up the street. The witnesses heard three or four shots fired from the Chevrolet when the two cars were parallel. Although the incident happened when the cars were close to a street light, the witnesses were unable to recognize the driver of the Chevrolet.
Later investigation and laboratory analysis of the two cars established that one of the bullets, fired from within the Chevrolet, never left the car. It hit the upper edge of the lowered window and ranged downward into the interior of the door and was recovered. A second bullet entered the lower left front door of the Renault, passed on through and was recovered from the floor of that car. A third bullet entered the upper left front door of the Renault, passed through the front seat, entered the right front door and was recovered from the inside of that car door.
After the shooting occurred the Chevrolet passed rapidly out of sight to the north. The Renault turned back into the street, hit the left rear bumper of a car parked parallel to the right street curbing and continued slowly up the street to the point where it came to rest against the northeast curbing of the first intersection. About the time the Renault hit the parked car Sharon Hoy was ejected from the left front door of the Renault and fell to the middle of the street. She was first observed by a couple saying their 'good-byes' on the front porch of the house where the car was parked parallel to the curbing. She was in a kneeling position in the street. They noticed bleeding and heavy breathing. She managed to rise to her feet and proceeded onto the porch of the house across the street. The people in that house were awakened when she collapsed against their front door. They looked at her crumpled form, saw bleeding and noticed noisy breathing. They immediately called the police. This call was noted at the police station at 12:22 a. m. Several police officers were at the scene by 12:31 a. m.
An autopsy performed on Sharon Hoy established death as a result of a bullet which entered her left breast, passed through her lung, upper trachea, neck and right shoulder. The doctor who performed the autopsy testified the woman was lying on her right side in the front seat of the Renault when the bullet entered her body.
When the police officers first arrived at the scene they called by radio for additional help. Officer Kenney while proceeding to the scene was advised to be on the lookout for a 1951 dark blue Chevrolet automobile which was wanted in connection with the shooting. On the way to the scene he noticed such a car parked beside a filling station at 17th and Grove streets. This was about eight blocks from the scene. The officer stopped and investigated. He felt the radiator of the car. It was warm. He noticed three people standing in front of the cafe across the street and went to them for information as to the owner and driver of the car. Frank Hoy, the defendant, advised Officer Kenney the car belonged to David Chaney and that the defendant had been driving it. Other officers arrived at the cafe in response to Officer Kenney's report sent in at 12:48 a. m. They talked with the three men in front of the cafe while Officer Kenney returned to the 1951 Chevrolet. He looked through the rear window and saw and empty cartridge case which appeared to be a .32 or a .380 caliber automatic casing. He noticed a hole in the very top of the right front window and a dent in the outside part of the door. He was advised by radio to examine for yellow or cream colored paint and found it present on the right side of the Chevrolet. Defendant was then placed under arrest and taken to the police station. Police laboratory men took over possession of the car after talking with David Chaney, the owner.
Two empty cartridge casings were taken from the floor in front of the rear seat in the Chevrolet. A bullet was recovered from the inside of the right front door panel. Two bullets were recovered from inside the cream colored Renault automobile. Laboratory analysis of the casings and bullets indicated all were fired in and by the same weapon.
The two cars were linked together by visual indentification of eye witnesses, laboratory analysis of bullets and casings and laboratory comparison of paint left on these cars by their impact. The murder weapon was never found.
The defendant contends the trial court erred in refusing to instruct the jury on second degree murder and other lesser included offenses.
In State v. Fouts, 169 Kan. 686, 221 P.2d 841, this court said:
(169 Kan. p. 692, 221 P.2d p. 845)
Instructions on lesser included offenses have been required in many of the reported cases when the defendant has been charged with first degree murder and the evidence in such case does not exclude every theory of guilt in a lesser degree. (See also State v. Clark, 69 Kan. 576, 77, 287; State v. Winters, 81 Kan. 414, 105, 516; State v. Smith, 161 Kan. 230, 167 P.2d 594.)
In many other cases this court has held every theory of guilt on a lesser degree was excluded under the facts of the case. (State v. Noble, 175 Kan. 398, 264 P.2d 479; State v. Gray, 189 Kan. 398, 369 P.2d 330; State v. Andrews, 187 Kan. 458, 357 P.2d 739; State v. Germany, 173 Kan. 214, 245 P.2d 981; State v. Zimmer, 198 Kan. 479, 426 P.2d 267.)
In State v. Noble, supra, this court in referring to State v. Fouts, said:
* * *.' (175 Kan. p. 400, 264 P.2d p. 481)
The court then reviewed the facts of the case and stated:
The question in every case must be resolved from the evidence at the trial. If the evidence excludes theory of guilt on any lesser degree then an instruction on first degree murder alone is all that can be required.
In the present case the defendant used an alibi for his defense. He denied all...
To continue reading
Request your trial
-
State v. Berry
...decision as a case in which the evidence at trial excluded the theory of guilt on any lesser degree of crime. State v. Hoy, 199 Kan. 340, 343, 430 P.2d 275 (1967). But it would not be until 20 years after Germany that this court would again weigh evidence to find the giving of lesser includ......
-
State v. Dixon
...we find no error in refusing to give such instruction. State v. Hammon, 245 Kan. 450, 454, 781 P.2d 1063 (1989); State v. Hoy, 199 Kan. 340, 345, 430 P.2d 275 (1967). Next, we examine Dixon's argument that the trial court erred in refusing to instruct on the lesser included offense of attem......
-
State v. Paxton
...he is in no position to complain about the trial court's rulings on his challenges for cause against Ehmke or Barnett. (State v. Hoy, 199 Kan. 340, 430 P.2d 275; State v. Springer, 172 Kan. 239, 239 P.2d 944; State v. Hooper, supra; State v. Tucker, 137 Kan. 84, 19 P.2d During the voir dire......
-
State v. LeVier
...13, 244 P.2d 195, and cases cited therein. Also, see, State v. Mitchell, 181 Kan. 193, 310 P.2d 1063, 68 A.L.R.2d 895.) In State v. Hoy, 199 Kan. 340, 430 P.2d 275, the defendant relied solely on alibi as a defense, and was convicted of first degree murder. In holding that the trial court d......