State v. Martin, 39055

• Decision Date: 12 December 1953
• Docket Number: No. 39055,39055
• Citation: 175 Kan. 373,265 P.2d 297
• Parties: STATE v. MARTIN.
• Court: Kansas Supreme Court

Page 297

265 P.2d 297

175 Kan. 373

STATE v. MARTIN.

No. 39055.

Supreme Court of Kansas.

Dec. 12, 1953.

Rehearing Denied Jan. 26, 1954.

Syllabus by the Court.

1. Where several felonies are committed by one person in carrying out a comprehensive plan, the different felonies may be charged in separate counts in one information. Under the facts set out in the opinion where defendant was charged with the murder of one person; the assault with intent to kill another; the burglary of a home and the larceny of the property therefrom, it was not improper to charge the respective felonies in separate counts in the same information.

2. In the trial of a criminal case the record is examined and it is held: That the court did not err (1) in denying a motion for change of venue; (2) in denying a motion for continuance of the trial; (3) in denying a motion to require the state to file a bill of particulars respecting certain matters; (4) or in permitting the county attorney to cross-examine a witness whom he had previously interviewed and whose testimony he deemed material when the witness called upon the stand declined to testify; (5) in permitting the state to show the flight of defendant after the crimes charged and pertinent instances relating thereto even though they tended to show that other crimes had been committed.

3. Other alleged trial errors are considered and it is held: That the court did not err in its ruling upon any of them.

Roy W. Cliborn, Mission, argued the cause, and Elmer Hoge, Overland Park, was with him on the brief for appellant.

John Anderson, Jr., Sp. Asst. County Atty., Olathe, argued the cause, and Harold R. Fatzer, Atty. Gen., Paul Wilson, Asst. Atty. Gen., Topeka, and James H. Bradley, County Atty., Olathe, were with him on the brief for appellee.

HARVEY, Chief Justice.

On September 26, 1952, the county attorney of Johnson county filed with the clerk of the district court of that county an information which in appropriate language charged Charles Wilford Isgrigg and Merle William Martin with four felonies in separate counts committed on or about the 23rd day of June, 1952. The first count charged first-degree murder of Willard Carver, a deputy sheriff of Johnson county; the second count charged assault with intent to kill of Floyd Gaunt, another deputy sheriff; the third count charged the burglary of the Moss Davis home at 98th and Mission Road, Overland Park in Johnson county, and the fourth count charged the larceny of personal property of the value of more than $20 from the Moss Davis home. Isgrigg was taken into custody the next day after the offenses were alleged to have been committed, and Martin was taken into custody on or about August 31, 1952. Both were in the custody of the sheriff of Johnson county. A severance of the trial was requested and Martin's trial began on November 17, 1952. It continued for about two weeks. The jury found the defendant Martin guilty on all counts and on the first count fixed his punishment at death. His motions for a new trial and in arrest of judgment were considered and overruled and he was sentenced to death upon the verdict of guilty of the first count of the information. He was also sentenced to terms of years of imprisonment upon the verdicts of guilty of the second, third and fourth counts, which sentences were not to be served or begin to run excepting in the event the sentence on the first count was not carried out. The defendant has appealed.

We first note the defendant has never, at any time, told the court, or the court and jury, that he did not commit the offenses charged against him. When he was arraigned upon the information he stood mute and the court entered a plea of not guilty for him, and upon the trial he did not take the witness stand in his own behalf. In this court there is no contention that defendant did not commit the crimes charged. The sole defense made, or attempted to be made, was that of insanity.

Since the facts pertaining to the felonies of which defendants were charged are not controversed they may be summarized as follows: Moss Davis and his wife lived on the corner of 98th street and Mission Road in Overland Park, Johnson county. About the 10th of June, 1952, they left for a month's vacation, having arranged with Mrs. Irene Bruce and her husband, who lived about one-half mile away, to care for and look after their premises while they were gone. On Sunday, June 22, 1952, Mrs. Bruce and her husband were at the Moss Davis home all day looking after everything about the premises. They left about 6:00 o'clock P.M. but before doing so they saw to it that the windows and the doors of the house were locked, and also the two gates which lead into the premises from the highway. They went to their own home; changed their clothes and went to the airport for dinner; had tire trouble and were delayed coming home; stopped at their home again to get their work clothes for the next day, and reached the Moss Davis home about 11:00 o'clock P.M., or a few minutes thereafter. As they drove up to the place they first noticed that one of the gates was open. They drove into the yard and stopped near the side door and Mrs. Bruce went to it. She found the door open; that the glass in the door had been broken; she went in on a small porch and found the woodwork of the door to the room of the house had been chiseled away along the side of the door and that door was open. She went into the house and found that everything 'looked like a tornado had struck it'. The drawers of the furniture had been taken out, the contents thrown on the floor, and the house had been thoroughly ransacked. She called her mother and told her what she had found and was advised to call the sheriff's office, which she did. The call reached the sheriff's office at 11:25 P.M.; the sheriff instructed Herbert V. Beatty, a deputy sheriff, to investigate. He went to the Moss Davis home, arriving there about 11:30 P.M. and was there perhaps about twenty minutes, found the situation much as described by Mrs. Bruce and together they looked through the house. No attempt was made at the time to get a complete list of things that were missing. Mrs. Bruce did notice that a small radio, a typewriter, the bed linen from one twin bed, a foam pillow, a bedspread and blanket were missing. Officer Beatty reported back to the sheriff's office. When he made his report two deputy sheriffs, Willard Carver and Floyd Gaunt, were present and were told by the sheriff to take a patrol car and see what they could find. Shortly after midnight, while Carver and Gaunt were patrolling the northwest part of the county, they had a radio call from the sheriff to go to the William A. Barth place from which there had been a report that someone was trying to steal their car. This place is in the northwest part of the county about halfway between De Soto and Bonner Springs. They were there informed Mrs. Barth had heard the engine on the car start; she looked out the window; she saw two men with a flashlight trying to push it, she yelled at them and asked what they were doing and told them to get out; they left the car and went in the direction of what is known as the Gilbert corner not far from the Barth residence. Mrs. Barth had no description of the men except that they wore light-colored shirts. The officers went over toward the Gilbert corner. At this place there is an east and west road with a road leading from it to the north. This road did not extend through the east and west road to the south. The corner it made at the east and west road is spoken of as a 'T' corner. This road to the north crosses a bridge about 100 feet or more north of the corner. Looking down that road they saw a dark-colored automobile in the ditch or on the shoulder of the road, and drove to it; no one was there; they took the license number; found on the front seat a German Luger pistol. In the back seat they saw what appeared to be a quantity of material of some kind covered with a blanket and also noticed a foam pillow. They drove back to the corner and stopped their car where it was partly concealed by timber and brush, and waited. Soon thereafter a pick-up truck, in which two men were riding, came from the north; passed the car at the side of the road, going on south to the Gilbert corner, turned around and went back to the car at the side of the road and pulled up to it and stopped in such a way that the rear of the truck was near the front of the car and the lights on the truck were put out. At that time Officers Carver and Gaunt started to walk toward the car and truck. They separated somewhat so they would approach from different directions. When they got within about 50 feet of the car and truck Carver called out to the men who had driven up in the truck, 'Come out with your hands up. Police.' Gaunt gave the same order at about the same time. The officers also turned on their flashlights; firing immediately started from the truck and the car at the side of the road. The officers returned the fire. Gaunt found a handy telephone pole which he got behind and emptied his revolver. He heard Carver say, in a weak voice: 'Gaunt, help! Help, Gaunt!', and Gaunt went over to where Carver was and found he had been shot. Gaunt felt of his pulse; tried to listen to his heartbeat, and found no evidence of life. He went back to his patrol car and reported the facts to the sheriff who sent other officers and an ambulance. Word of the incident was spread in the community and an intensified search was made for the persons who were at the truck and automobile, and who did the shooting.

At autopsy disclosed that Willard Carver's death was caused by a bullet from a .38 caliber Colt revolver which entered his body from the right side, a few inches below his armpit; passed through the lung cavity; severed a vertebra of the backbone and the spinal column and lodged in the flesh in the left side. His death occurred within a...