State v. Keehn

• Decision Date: 11 November 1911
• Docket Number: 17,444
• Citation: 118 P. 851,85 Kan. 765
• Parties: THE STATE OF KANSAS, Appellee, v. FRED KEEHN, Appellant
• Court: Kansas Supreme Court

118 P. 851

85 Kan. 765

THE STATE OF KANSAS, Appellee, v. FRED KEEHN, Appellant

No. 17,444

Supreme Court of Kansas

November 11, 1911

Decided July, 1911.

Appeal from Nemaha district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MISCONDUCT OF JURORS--Not Prejudicial. While the evidence was being presented at the trial of the defendant for murder one of the jurors drew an inaccurate sketch of the scene of the homicide in his notebook, so that he could follow the movements of the principals, and others, as detailed by the witnesses, more intelligently. When the jury entered upon its deliberations it felt the need of a sketch to visualize the scene, and no other being available commenced to draw one, when the juror submitted his, which was used for the purpose. Held, a new trial will not be granted for misconduct of the juror or of the jury, or because the jury received "evidence, papers or documents not authorized by the court," as provided for in section 275 of the code of criminal procedure.

2. MISCONDUCT OF JURORS--Same. The jury agreed on a verdict of guilty but were unable for a time to agree on the degree of the crime, some favoring murder in the second degree and some favoring manslaughter. A letter to the judge was written asking all clemency for the defendant that could be given in second degree murder, and it was agreed that if a verdict of that kind were reached the letter would be signed and sent to the judge. A ballot was then taken, resulting in a unanimous verdict of murder in the second degree, which was duly returned, and the letter was signed and delivered as proposed. Held, the verdict will not be set aside for misconduct of the jury, or because it was reached by artifice, or because it represents other than a fair expression of the opinion of the jurors.

3. MISCONDUCT OF JURORS--Impeaching the Verdict. On the hearing of the motion for a new trial the defendant, to impeach the verdict, offered in evidence the affidavits of those jurors who, before the letter was written, voted for a verdict of manslaughter, which affidavits stated that the jurors making them were induced to vote for murder in the second degree because they believed the judge had power to lower the degree of guilt to manslaughter. Held, the court properly refused to consider the affidavits.

4. TRIAL--Conduct of Trial Judge--Examining Witnesses. The purpose of a trial in a criminal case is to ascertain the truth of the matters charged against the defendant, and it is a part of the business of the trial judge to see that this end is attained. He is a vital and integral factor in the discovery and elucidation of the facts, and whenever in his judgment the attorneys are not accomplishing the full development of the truth it is not only his right but it is his duty to examine and cross-examine the witnesses. The presumption is that this liberty will be honorably and impartially exercised in the interest of justice, and in this case it was not abused by the trial judge.

5. PRIVATE STENOGRAPHER--Refused--Not Prejudicial. The court refused an application made near the end of a long trial to permit the defendant to make use of a private stenographer to take down such portions of the evidence and proceedings as he might desire. No showing is made and no claim is made that the official record subsequent to the application is incorrect, incomplete or inadequate to the defendant's needs, or that he was embarrassed or hindered or caused any discomfort in completing his defense, or in presenting his motion for a new trial or in preparing his appeal. Held, that prejudice will not be presumed and that the error committed was without prejudice to the defendant's substantial rights.

6. SELF-DEFENSE--Instructions. The law of self-defense can not be presented, illustrated and applied all at once in a single statement to the jury. There must be arrangement and sequence in the presentation of declaration and limitation, proposition and qualification, statement and supplementary statement. It is not necessary that such a presentation conform to the rules of rhetoric or that any particular order be followed. It is sufficient if all the necessary statements clearly appear, and when they do so appear they will be read together for the true scope and sense of each.

7. SELF-DEFENSE--Same. In this case instructions upon the law of self-defense, modeled in part upon those given in the case of The State v. Bohan, 19 Kan. 28, are held to be defective in form, but not, therefore, so erroneous or misleading as to require a reversal of the judgment.

8. MALICE--Instructions. Instructions upon the subject of malice considered and held neither incorrect nor insufficient because the expression "malice express or implied" was used without discussing the distinction between express malice and implied malice, and without stating that actual malice is always intended.

9. VERDICT--In Open Court--Recess. It is not indispensable that the verdict in a murder case be returned in open court as provided in section 238 of the code of criminal procedure. It may be received during a recess of the court if the forms prescribed for preserving its authenticity are observed and the defendant is not deprived, against his will, of opportunity to protect his substantial rights.

10. VERDICT--Absence of Judge--By Consent. A defendant on trial for murder may lawfully waive the presence of the trial judge at the return of the verdict, and he does so by an agreement made in open court, with the consent of the court, that the verdict may be received by a designated attorney in the absence of the judge, when the proceeding is in all other respects regular.

Ira K. Wells, Abijah Wells, W. J. Gregg, and W. W. Redmond, for the appellant.

John S. Dawson, attorney-general, Chas. H. Herold, county attorney, A. E. Crane, E. D. Woodburn, and F. T. Woodburn, for the appellee.

OPINION

BURCH, J.:

On July 21, 1910, the defendant, Fred Keehn, shot and killed William Bleisner. At the following September term of court the defendant was convicted of murder in the second degree and sentenced accordingly. He appeals.

The shooting took place following a school meeting at a district schoolhouse. The schoolhouse extends 24 feet east and west and 30 feet north and south and fronts north. Along its front extends a vestibule 13 feet long and 6 feet wide, with entrances at the east and west ends. The school grounds comprise an acre of land and the schoolhouse is located slightly west and north of the center of the tract. Along the west side of the lot is a wire fence. Thirty feet west of the northwest corner of the schoolhouse stands an old coal house 6 by 8 feet in size. Five feet south of it stands a new coal house 10 feet square. Between these coal houses and the fence is a driveway 7 feet wide. North of the lot is a public highway, and the entrance to the lot is through a gate at the northwest corner. Twenty-five feet south of the gate is an elm tree which stands in the fence. Those who attended the school meeting brought their vehicles into the lot. The defendant, his wife, his brother August Keehn, and two of his sisters came in a wagon. They drove into the lot, turned around, and hitched the team, which headed in a slightly northwesterly direction, to the tree. Joseph Hackenberger came in a buggy and hitched his horse to the fence some distance south of the new coal house. Others hitched their horses to a wire supported by posts along the road north of the schoolhouse. Other persons who attended the meeting were: John Frehl and wife, Thomas Kahl and wife, William Graffa and wife, Ferdinand Bleisner and his son, William Bleisner, who was killed. Chester Bleisner, a brother of the deceased, was working in a near-by field and came into the school grounds a short time before the killing.

Shortly before the business of the meeting was concluded Graffa, a partisan of the Keehns, brought on the trouble by a remark calculated to excite Ferdinand Bleisner, who had grievances against the Keehns. The result was that, after passing out of the building through the east door of the vestibule, Ferdinand Bleisner wanted to fight the Keehns. An encounter at that place was prevented, although Kahl, a partisan of the Bleisners, seemed to desire that one should occur. The Keehn brothers had come to the meeting armed, Fred with a pistol and August with a chain billy, but they seemed willing to escape difficulty, moved toward their wagon, and August and some of the Keehn women climbed in. Ferdinand Bleisner, however, was bent on trouble. Against the protests and entreaties of some of those present, he followed the Keehns, and from the ground on the north side of the wagon made a demonstration against August, whom he very much desired to chastise. August produced his billy, and Ferdinand then commenced to unhitch the tugs of the horse on the north side of the wagon tongue in order to arm himself with a singletree. At the sight of August's weapon, Kahl, who had followed closely after Ferdinand, went in search of a club. While Ferdinand was endeavoring to secure the singletree the defendant, who was then on the south side of the wagon, thrust a seat board across the front of the wagon, striking Ferdinand, and then threw the board at Ferdinand, striking him on the side of the face, destroying one eye, fracturing the cheek bone, knocking him down and rendering him insensible for a long time. Chester Bleisner having appeared, he and August Keehn, who had then reached the ground, engaged in a fight on the north side of the wagon, which was participated in by one of August's sisters, who was armed with a portion of a broken stool. While this melee was in progress the defendant shot William Bleisner at a point in...