State v. Jones, 44964

• Decision Date: 09 November 1968
• Docket Number: No. 44964,44964
• Parties: The STATE of Kansas, Appellee, v. Alfred G. JONES, Appellant.
• Court: Kansas Supreme Court

Page 851

446 P.2d 851

202 Kan. 31

The STATE of Kansas, Appellee, v. Alfred G. JONES, Appellant.

No. 44964.

Supreme Court of Kansas.

Nov. 9, 1968.

Rehearing Denied Dec. 11, 1968.

Syllabus by the Court

The record in a criminal action in which the defendant was convicted by a jury of eight separate counts of the crimes of murder, armed robbery, resisting and obstructing a ministerial officer in the performance of his duty in a felony case, and the possession of pistols after conviction of the offense of attempted armed robbery in the state of California, which were all charged in one and the same information, is examined, and it is held that, under the facts, conditions and circumstances, and for the reasons set forth at length in the opinion, the judgment rendered and sentences imposed against the defendant must be affirmed.

G. Edmond Hayes, Wichita, argued the cause and was on brief for appellant.

Keith Sanborn, County Atty., argued the cause, and Robert Londerholm, Atty. Gen., James Z. Hernandez, and David P. Calvert, Deputy County Attys., with him on brief for appellee.

FATZER, Justice.

The defendant, Alfred G. Jones, was charged in one and the same information with eight separate and distinct crimes relating to his unlawful possession and use of pistols.

The first count charged the possession and control July 18, 1966, of a .357 magnum revolver after conviction of the offense of attempted armed robbery in the state of California in June 1965, in violation of K.S.A. 21-2611. The second count charged the willful resistance and opposition of a ministerial officer on July 18, 1966, in the discharge of an official duty in a felony case, in violation of K.S.A. 21-717. The third count charged an assault upon Charles Stewart, a Wichita police officer, on July 18, 1966, with a .357 magnum revolver, in violation of K.S.A. 21-431. The fourth count charged the possession and control on July 16, 1966, of a .32 caliber revolver after conviction of the offense of attempted armed robbery in the state of California in June, 1965, in violation of K.S.A. 21-2611. The fifth count charged robbery in the first degree on July 16, 1966, of $3,946 lawful money of the United States from the Steen's Super Discount Store in the presence of and against the will of John W. Marshall, in violation of K.S.A. 21-527. The sixth county charged the deliberate and premeditated murder of John W. Marshall on July 16, 1966, with a .32 caliber revolver in violation of K.S.A. 21-401. The seventh count charged the deliberate and premeditated murder of Sue M. Marshall on July 16, 1966, with a .32 caliber revolver in violation of K.S.A. 21-401. The eighth count charged the possession and control on June 5, 1966, of a .22 caliber short Rahm revolver after conviction of the offense of attempted armed robbery in the state of California in June, 1965, in violation of K.S.A. 21-2611.

At a trial in the district court by a jury, which commenced on January 3, 1967, and terminated on January 16, 1967, the state's evidence was the only evidence introduced. Although the defendant issued subpoenas for witnesses to testify on his behalf, he called no witnesses and offered no evidence. At the close of the state's evidence and the overruling of the defendant's motion for discharge, the case was submitted to the jury. The defendant was found guilty of each of the separate crimes charged in the information, and for conviction of each of the crimes of murder the jury assessed the penalty of confinement at hard labor in the Kansas State Penitentiary for life. Upon the overruling of his motion for a new trial on February 3, 1967, the defendant was duly sentenced to the penalties prescribed by the statutes, all of the sentences to run consecutively with each other, and he timely perfected this appeal.

The event giving rise to this appeal took place in Wichita in June and July of 1966.

Highly summarized, the evidence disclosed that between the hours of 10:30 p. m. on Saturday, July 16, and 3:45 a. m. on Sunday, July 17, Steen's Discount Store at 21st and Grove Streets in Wichita was robbed of $3,946, and Sue M. Marshall and her husband, John Marshall, an employee of the store, were shot and killed with a .32 caliber revolver. About 3:40 a. m. on July 17, a merchant police officer tried the front doors at Steen's store. One of them was unlocked. The outside doors of the store were locked at approximately 10:35 p. m. when all the employees left the store except John and Sue Marshall who were checking the day's receipts at the courtesy counter. The police were notified and the robbery and homicides were discovered. A witness who was leaving a friend's house and returning home passed the east end of the store at approximately 10:35 p. m. and heard three loud noises-like somebody beating on a pot or a pan. Upon learning of the deaths of the Marshalls the next morning, the witness remembered those sounds and reported to the police he heard three shots, thus establishing the approximate time the Marshalls were killed and the robbery occurred.

The defendant lived with two other men at 2508 Stadium Street in Wichita. He also had a bed in the basement of his parents' home at 2208 Shadybrook in Wichita, where the occasionally slept. The Stadium address was within three blocks or two minutes thirty seconds walking distance, and less than one and a half minutes running time from Steen's store. When arrested on Monday, July 18, the defendant was at the Stadium address.

It was the theory of the state that the defendant entered Steen's store and hid until all the employees left except the Marshalls; that he then approached the Marshalls and forced them into the meat department where he killed John Marshall and killed Sue Marshall in the insulated meat cooler where she was trying to hide, and that he then robbed the store of $3,946. The defendant was seen to enter the store about 7:30 p. m. and was never seen to leave. His appearance was one of easy identification. Several months prior to July 16, the defendant was in an automobile accident which crushed his lips and broke his jaw in seven or eight places. Because of damaged facial muscles, his features pulled over in a sneer, twisting his eyes and other physiognomy in a cruel appearing position. There was a resulting loss of control of his saliva gland necessitating the frequent use of a handkerchief or towel to his mouth.

There were four shots fired when the Marshalls were killed. One bullet went through the front window of the store, two bullets were fired into the head of John Marshall, and one bullet into the head of Sue Marshall. The jury could reasonably conclude that the testimony of the witness that he heard only three shots was because the fourth shot fired into the head of Sue Marshall was muffled by the insulation of the meat cooler.

The evidence of the ballistic expert of the Wichita police department was uncontroverted that the bullets removed from the heads of John and Sue Marshall were fired by the defendant's .32 caliber pistol. Likewise, the evidence was uncontroverted that five expended .32 cartridges found in the wastebasked in the bathroom at the Stadium address were fired from the defendant's .32 caliber pistol. The ballistic expert further testified that small flecks of gray paint found on the barrel of the defendant's .32 caliber pistol matched all the physical characteristics of the gray paint on the meat counter in Steen's store where John Marshall was murdered, and further there were some identifiable indentations in the wood of the meat counter.

The activities of the defendant as established by the evidence were as follows: On Friday, July 15, one Carolyn Bills, the defendant's girl friend, was treated at a hospital after she accidentally shot herself with the defendant's .32 caliber pistol while trying to unload it at the Stadium address. The defendant accompanied her to the hospital and told her to state the pistol was hers. This was untrue, and Miss Bills later telephoned the police the serial number showing the pistol was purchased by the defendant on July 9, at the Wichita Brokerage Company, in his brother's name. The evidence showed the pistol was in the defendant's possession at 4:30 p. m. Saturday, July 16.

On Saturday night, July 16, Clara Hopson and her husband drove to the Stadium address to see what the defendant and Ralph Credit, who lived with him, were doing. The defendant was a cousin of Clara's husband and Credit was her brother. She testified 'it was around 11:20, between 11 and 1:30.' The Hopsons drove the defendant over to his parents' home at 2208 Shadybrook where he went into the house with a brown paper sack 'like you get at the store,' containing something. The Hopsons were visiting in the street with the defendant's brother and as they were preparing to leave, the defendant came back without the paper sack and asked them to drive him down on Murdock Street. The evidence showed that thereafter the defendant went 'out on the town' for the balance of Saturday night, displaying a large sum of money.

On Sunday morning, July 17, the defendant gave one of his friends some money at the Stadium address to make a delinquent car payment and he complained to another friend that Ralph Credit had taken $500 of his money. After Credit fell asleep the defendant took Credit's billfold and showed the witness he had $480 in twenty-dollar bills which he said Credit had taken.

The defendant's activities disclosed that all day Sunday he engaged in a series of crap games where he lost large sums of money, the losses of which were established by the testimony of the witnesses who won the money. As the word spread that the defendant had a large sum of money, the games referred to were set up by professional gamblers for the purpose of separating the defendant from his money.

On Monday morning, July 18, the defendant returned to his parents' home at 2208 Shadybrook just as his broth...