State v. Moffitt

• Decision Date: 31 August 1967
• Docket Number: No. 44573,44573
• Citation: 199 Kan. 514,431 P.2d 879
• Parties: STATE of Kansas, Appellee, v. Robert Lewis MOFFITT, Appellant.
• Court: Kansas Supreme Court

Page 879

431 P.2d 879

199 Kan. 514

STATE of Kansas, Appellee, v. Robert Lewis MOFFITT, Appellant.

No. 44573.

Supreme Court of Kansas.

Aug. 31, 1967.

Rehearing Denied Sept. 26, 1967.

Syllabus by the Court

1. In a criminal action where the trial court takes judicial notice of a journal entry disclosing a prior conviction of the accused, to supply an element of proof on the felonious charge of possessing a pistol after conviction of a felony, and the trial court fails to instruct the jury to accept as a fact the matter so noticed, but later submits the entire court file containing such journal entry to the jury upon request, it is held: No prejudicial error has been shown where the jury found the accused guilty of the charge and the identity of the accused with the one who committed the prior felony is admitted.

2. Flight by a person accused of a crime though not of itself sufficient to support a conviction, is a circumstance that may be shown against him and given such weight as the jury deems it entitled to; and it is proper for the trial court in its instructions to the jury to mention the fact that evidence tending to prove flight has been offered, and may be considered by it as a circumstance bearing upon the guilt of the accused, with all the other evidence in the case.

3. Where an accused in a criminal action is charged with attempted kidnapping in the first degree, and the only evidence on the point discloses that the accused while driving an automobile pulled up to the side of a street on two occasions and said to pedestrians within close range of his vehicle, 'Get in,' and that almost simultaneously with those words a pistol was at the windown of his automobile and was discharged in rapid fire succession at the pedestrians, without hitting them, it is held: The words, 'Get in,' when coupled with the immediate firing of the pistol constituted but one act-a felonious assault-and as a matter of law did not supply any evidence of an attempt to kidnap any of the persons assaulted.

4. A portion of K.S.A. 21-401 providing that every murder which shall be committed in the perpetration or an attempt to perpetrate any arson, rape, robbery, burglary or other felony shall be deemed murder in the first degree, is construed and it is held: The term 'other felony' includes acts which were made felonious after the original enactment of the first degree murder statute in the Territorial Laws of 1855.

5. A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life constitutes murder in the first degree.

6. The term 'other felony' in K.S.A. 21-401 includes the felony created by K.S.A. 21-2611 (possession of a pistol after conviction of a felony) which is held to be inherently dangerous to human life, and where the evidence discloses a direct causal relation between the commission of such felony and the homicide, it is sufficient to sustain a conviction on a charge of murder in the first degree, even though intent is not an element of proof in K.S.A. 21-2611.

7. Where an accused in a criminal action is charged with felonious assault, a conviction upon such charge is supported where the evidence discloses the accused, while in the commission of a felony (possession of a pistol after having been convicted of a felony), shot at a person at close range and missed.

8. In a criminal action where the jury, after deliberations have begun, requests information concerning a life sentence and the parole possibilities, a correctly stated instruction to the jury on the law, while it may be erroneous to give it, is held not to constitute prejudicial error upon the record presented for review, where the accused is found guilty on a first degree murder charge and the jury assesses the penalty to be life imprisonment.

Russell Shultz, Wichita, argued the cause, and Larry Kirby, Wichita, was 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.

SCHROEDER, Justice.

This is an appeal in a criminal action wherein the appellant was found guilty by a jury of murder in the first degree; possession of a pistol after conviction of a felony; two counts of attempted first degree kidnapping; and two counts of felonious assault.

The principal points presented on appeal concern questions of law based upon the instructions given by the trial court as applied to the evidence in the case.

The material facts disclosed by the evidence in the record are not in dispute.

Shortly after midnight on the 8th day of August, 1965, a young colored housewife twenty-two years of age named Mary Alice Downing was sitting on the seat of a motorcycle parked on the street in front of the house at 1324 Wabash in the city of Wichita, Kansas, waiting for a man with whom she had been riding, one L. C. Goines. He had gone into the house where he resided to check on the welfare of an aged mother. While seated on the motorcycle which was headed north and near the east curbline of the street, she was struck in the back of the head with a bullet, part of which lodged in her brain. Goines had just gone into the house when he heard a report, which sounded like a shot, and heard a car speeding away. He ran out of the house and found Mary Alice Downing slumped over his motorcycle and saw blood running. She was immediately taken to the St. Francis Hospital at Wichita where she was pronounced dead at 2:40 a. m.

Although the exact chronology of events which occurred in the early morning hours of August 8, 1965, is not definitely established, the evidence discloses that a white 1953 or 1954 model Oldsmobile automobile driven down Ohio Street from the north in the 1000 block pulled over to the side of the street at 1037 Ohio and stopped where a man named Augustus Wells, Jr. and a woman named Lucretia Brown were walking north on the sidewalk along the west side of the street. As the automobile came to a halt a man told them to get into the car, and immediately a pistol was projected outside the right hand window of the automobile, snapped twice, and then fired four times. At the time the gun fired they were only six or seven feet from the automobile. No one was hit and none of the slugs that were fired from the gun on this occasion was recovered.

Also, in the early morning hours of August 8, 1965, a white automobile drove north on Washington Street to the intersection of 11th Street where it made a left turn and pulled up at the northwest quadrant of the intersection. At that place a young woman named Victoria Johnson was proceeding southward and had just reached the intersection. As she reached the corner the white automobile pulled up and a voice from the automobile said, 'Get in,' and then a gun was immediately fired two, three, or possibly four times. The young woman was four to six feet from the automobile, according to her testimony, but she was not hit. She could not identify the person in the automobile and she did not actually see the gun, although she saw the flash when the gun was fired.

Police officers who were originally called to the scene at 1324 Wabash upon being told that a white automobile had come by and sped away after the gun was fired, immediately began to look for such an automobile. Officer Fletcher was only about one block away when he observed an automobile at the corner of 11th and Washington Streets, which was light in color. He saw the headlights and then heard what he thought were three or four shots fired in rapid succession. He thereupon drove toward this automobile at which time the automobile started toward him, and the man driving the car informed him that someone was shooting down there. Whereupon the officer said, 'Yes, it was you.' The driver of the white automobile then took off at a high rate of speed. The officer immediately reversed the direction of his patrol car and gave chase, never losing sight of the white automobile. The chase was at high speeds and made rounds of several blocks in the immediate location. When the white automobile finally got onto Murdock Street it headed in a westerly direction and drove across to the west side of the city to Riverside Park where the driver missed a turn and rolled the automobile.

At the scene of this accident the driver of the white automobile, dressed in a pair of pants, socks and shoes, with no shirt or underpants, was found to be the only occupant of the vehicle. The wrecked vehicle was described as a white 1954 Oldsmobile 2-door hardtop bearing Kansas license plate SG1574. In the automobile was found an automatic pistol, described as a 7.65 Millimeter Pistola Beretta, Serial No. 408474, part of a box of live ammunition, a clip for the pistol, and two brass empty shell casings of a .32 caliber bullet.

When first seen the appellant appeared to be uncounscious and was removed to St. Francis Hospital for treatment. Upon his release from the hospital later the same morning, he was placed under arrest and identified as Robert Lewis Moffitt (defendant-appellant.)

In the investigation which followed empty shell casings were found at the scene of the various shooting incidents: At 1324 Wabash they found one empty .32 caliber shell casing, part of a copper jacket from a bullet, and a lead slug lying in the street; at 1037 Ohio three empty .32 caliber shell casings were found; and at 11th and Washington Streets one empty .32 caliber shell casing was found. Besides this, the copper jacket from a bullet and the lead base of a bullet were both recovered from the brain of Mary Alice Downing.

Captain Bevis, the laboratory supervisor of the Wichita police department and an expert in firearms identification, supervised the investigation and testified that all of the expended cartridges as well as the slugs which were found in connection with this case were all fired by the automatic pistol...