State v. Kauffman

• Decision Date: 26 June 1934
• Docket Number: 33385
• Citation: 73 S.W.2d 217,335 Mo. 611
• Parties: The State v. Paul H. Kauffman, Appellant
• Court: Missouri Supreme Court

73 S.W.2d 217

335 Mo. 611

The State v. Paul H. Kauffman, Appellant

No. 33385

Supreme Court of Missouri

June 26, 1934

Rehearing Overruled June 19, 1934.

Appeal from Jackson Circuit Court; Hon. Ben Terte, Judge.

Affirmed.

S R. Stone and J.B. McFarland for appellant.

Roy McKittrick, Attorney-General, and Frank W Hayes, Assistant Attorney-General, for respondent.

(1) The court did not err in overruling appellant's challenge to jurors Albert A. Davies, C. B. Long and John L. McCough. Sec. 3671, R. S. 1929; State v. Poor, 228 S.W. 814; State v. Davis, 7 S.W.2d 267; State v. Nevils, 51 S.W.2d 50. (2) The court did not err in refusing appellant's challenge to juror Arthur S. Hurt. McManama v. United Rys. Co., 175 Mo.App. 50; Kennelly v. K. C. Rys. Co., 214 S.W. 237; State v. Cunningham, 100 Mo. 388; State v. Brooks, 92 Mo. 575; State v. Ashbrook, 11 S.W.2d 1039. (3) Where killing resulted from perpetration of rape, no proof is required of deliberation and premeditation. Sec. 3982, R. S. 1929; State v. Cade, 34 S.W.2d 82; State v. Moore, 33 S.W.2d 905. (4) There was substantial evidence in the record to support the verdict. Sec. 3735, R. S. 1929; State v. Francis, 52 S.W.2d 552; State v. Baker, 300 S.W. 673.

Leedy, J. Tipton, J., concurs; Ellison, P. J., absent.

OPINION

LEEDY

Defendant again appeals from a judgment of conviction of murder in the first degree, and a sentence of death resulting on a retrial following our remand of his case on a former appeal. His previous conviction was reversed primarily because he had not been afforded a reasonably sufficient opportunity to prepare and present his defense, although other alleged errors were examined by the court, and adjudged prejudicial. The sordid facts upon which the case against him rests, and upon which it was submitted to the jury are, in their essentials, the same as those detailed in the opinion written on such former appeal, to which reference is made for a statement thereof. [See State v. Kauffman, 329 Mo. 813, 46 S.W.2d 843.] This difference in the facts should be noted: That on the first trial defendant was not called as a witness in his own behalf; whereas, at the last trial he took the stand, and denied having killed and murdered Avis Woolery, the girl whom he had lured from her home by means of a "want ad" which he had caused to be inserted in a local newspaper. He contended he last saw the girl when he left her near Twelfth and Paseo in Kansas City in the afternoon of the day in question following an indecent proposal made by him, which she resented. And he further testified that his confession was obtained by duress, and through mistreatment and brutality on the part of the peace officers. His defense was insanity.

I. The matters most seriously urged for a reversal go to rulings with respect to the panel of jurors before which defendant was tried. The principal complaint, and the one stressed in the oral argument and brief of appellant's counsel, grows out of the following state of facts: On the morning on which the hearing of evidence was scheduled to begin, and after both sides had made their peremptory challenges, and the names of the twelve selected to try the case were announced, and they were in readiness to be, but immediately before being, sworn to try the case, one of the jurors, out of the presence and hearing of his fellows, told the court: "I have a daughter about the age this girl would be if she had lived, and she will graduate from Horner's next month, and I got to thinking about it, and I don't feel the same as I did yesterday, and I felt it was the proper thing to tell you now before we start into the case."

This statement precipitated a lengthy discussion and resulted in an extended reexamination into the qualifications of said juror to sit in the case. The record shows both court and counsel carefully inquired into the situation thus presented. The following excerpts are fairly representative of the range the questioning took, and the character of answers elicited throughout the lengthy examination:

"Mr Page: Of course, if this man cannot give a fair and impartial verdict based solely on the evidence and the law in this case we will just have to discharge the whole jury and declare a mistrial and start all over again.

"Juror Hurt: I will go ahead and do it; I will serve.

"Mr. McFarland: Now, just a minute, --

"Mr. Page: Wait a minute, I haven't finished. If the man can sit fairly and impartially and listen to the evidence and at the close of the case can fairly and impartially decide the case on the evidence alone, regardless of the fact that he has a daughter the same age as this girl there ought to be no mistrial of this case at this time on that account.

"Juror Hurt: I will do that.

"The Court: Did you start to say something, Mr. Stone?

"Mr. Stone: I was going to say, if your Honor please, that the selection of this man by the defendant, of course, was based upon his testimony under oath yesterday that he would be unbiased and unprejudiced and if anything has happened since that time, such as looking at his daughter and visualizing her presence here to make him feel that he would not be fair and impartial and unbiased, then we desire to insist that the jury be discharged. I don't believe that it would be fair to our client or to our case to go on under those circumstances.

"Q. (the Court). Well, all that I want to know from this juror is whether he can sit in this case, listen to the evidence, listen to the instructions of the court, and be governed in so far as his verdict is concerned solely and alone by the evidence and the instructions of the court and not take into consideration the fact that he has a daughter and not be influenced or swayed either way, either for the State or for the defendant on account of that fact or any other outside matters in any way, shape or form; if you can answer me honestly that you can do as the Court has indicated then you are qualified, but if you are going to be swayed or influenced in the slightest by anything other than the evidence and the instructions of the court, then of course you are not qualified to sit in this case. A Judge, in this case you couldn't substitute another man?

"The Court: Well, that is not for you to say, you should not take that into consideration. Pardon me, I don't want to be disrespectful, but if you can do as the court has indicated, be governed solely and alone by the evidence and the instructions of the court and not be swayed in the --

"Juror Hurt (interrupting.): Yes, I can do that. . . .

"Q. (the Court). Let me say this to you, that the court does not want you to take into consideration in the slightest any inconvenience the court or any inconvenience the rest of the jury may be put to, or the fact that we cannot substitute another man. That, and I say it respectfully, is no concern of yours and you should not take that into consideration in answering my question. If you cannot sit in this case absolutely fair and impartial, free of any feeling of any kind or character tell me now. A. I can.

"Mr. McFarland: What was that answer? A. I will.

"Q. (Mr. Page). Mr. Hurt, do you mean by that that anything took place that would cause you to not fairly and impartially listen to the evidence in this case and at the close of all the evidence and after hearing the reading of the instructions of the court and the argument of counsel, that you could not return into this courtroom an unbiased, fair and impartial verdict as to the guilt or innocence of this defendant, based solely on the evidence in this case? A. I can.

"Q. You can do that? A. Yes, sir, I can.

"Q. If the evidence in this case would show that this defendant is innocent, could you acquit him? A. Yes,

"Q. (the Court). And would you? A. Yes.

"Mr. Page: You may inquire.

"Q. (by Mr. Stone). Mr. Hurt, what the defendant wants and all the defendant wants and all the State wants is a jury composed of twelve fair and impartial men. Now, when you stepped up to the bench a few moments ago there was a doubt in your mind then at that time, was there not, as to whether or not you could be fair and impartial in deciding this case? A. Well, I just seemed to feel -- I have thought over this matter and when I looked at my daughter yesterday evening I just thought -- there is no question but what I can be fair about it. It just seemed when she came in yesterday evening I couldn't help but think about her, about the same age and --

"Mr. McFarland (interrupting). Mr. Hurt, don't you think that --

"The Court: Wait a minute. Let him finish.

"A. (continuing). -- I can go -- I know that I can hear -- that I can hear the evidence and be entirely fair. There is no question in my mind about that.

"Q. (Mr. Stone). That feeling that came over you last evening when you saw your daughter, was that still in your mind when you stepped up to the court's bench this morning? A. It wasn't only then; you see I was not questioned in detail yesterday and I want you people to know that, but I will be entirely fair. I will go by the evidence and the instructions of the court.

"Q. Is there any doubt in your mind whatever at this time -- A. (interrupting). No, sir.

"Q. (continuing). -- as to whether you would be swayed or influenced by the mental picture of your daughter in the trial of this case? A. No.

"Q. Don't you believe her picture would come to your mind, wouldn't you visualize her presence here in listening to this evidence and when you are in the jury room deliberating in consideration of your verdict that you might render in this case -- A. (interrupting). No.

"Q. (continuing). -- to the extent that it might in some degree influence your verdict? A. No, sir.

"Q. (by the Court). Mr. Hurt, I...