State v. Morrison
| Decision Date | 09 May 1903 |
| Docket Number | 13,329 |
| Parties | THE STATE OF KANSAS v. JESSIE MORRISON |
| Court | Kansas Supreme Court |
Decided January, 1903.
Appeal from Butler district court; G. P. AIKMAN, judge.
SYLLABUS BY THE COURT.
1. TRIAL JUDGE--Prejudice Must Be Shown. It is not the opinion which a trial judge may entertain as to the guilt or innocence of a defendant about to be put upon trial in his court which disqualifies such judge and entitles the defendant to a change of venue, but it is the existence of such prejudice in the mind of the judge against the defendant as may prevent defendant from having a fair and impartial trial of his cause which disqualifies, and such prejudice must be clearly made to appear.
2. HOMICIDE--Second Trial, after Reversal. In this state a defendant tried for murder upon an information charging murder in the first degree and convicted of manslaughter in the second degree, who appeals to this court and obtains a reversal of such judgment, may again be placed upon trial for murder in the first degree and convicted of that offense or any lesser degree of crime charged in the information.
3. HOMICIDE--Qualifications of Jurors, Killing Admitted. In the trial of a homicide case where defendant admits the killing and justifies on the ground of self-defense, the act of killing is not the issue to be tried in the case, and a juror who, in his examination upon his voir dire, states that he has formed or expressed an opinion as to the guilt of defendant is not for that reason alone disqualified, if from his entire examination it clearly appears that such opinion is based upon the belief that defendant killed deceased, and that the juror has neither formed nor expressed any opinion as to whether the defendant was justified in taking the life of deceased, as that is the material fact or issue to be tried.
4. PRACTICE, SUPREME COURT--Second Review. All questions of law once considered and determined on a former appeal become the law of the case and are conclusive upon a second appeal to the same appellate court.
5. JURY AND JURORS--Qualifications--Conditions Precedent. When affidavits charging jurors with having expressed opinions as to the guilt of defendant prior to their being called as jurors are relied on to annul a verdict and obtain a new trial, it must be clearly shown that such expressions of opinion, if known, would have been sufficient to sustain a challenge for cause at the time the jury were impaneled; and it must also be unequivocally shown that neither the defendant nor counsel for defendant knew the facts at the time the jury were impaneled.
C. C Coleman, attorney-general, W. M. Rees, county attorney Hamilton & Leydig, E. N. Smith, and E. B. Brumback, for The State.
Redden & Kramer, H. W. Schumacher, and V. P. Mooney, for appellant.
OPINION
On the morning of the 22d day of June, 1900, in the city of El Dorado, the defendant, Jessie Morrison, cut the throat of Clara Wiley Castle, the wife, and scarcely a week the bride, of Olin Castle. The tragedy occurred in the home of the bride. The instrument used was a razor. The deed was, in all its surroundings, accomplishment, and conclusion, most pathetic, terrifying, and bloody. No less than twenty gashes with the razor were inflicted on the person of the deceased. The windpipe was cut in two places, the esophagus was twice severed, yet in this horrible condition the wife lived until the 10th day of July. During all of this time her condition was indeed most pitiable. The nature of the encounter, the conditions under which the tragedy occurred, the choice of instrument employed, and the severity of its use, caused wide-spread excitement and comment. The tragedy, in all of its horrible details and ghastly conclusion, the ensuing arrest of defendant, her examination and subsequent trials, were by the public press and report spread broadcast over the country ad nauseam.
Defendant was arrested, charged with the murder of Mrs. Castle. The first trial resulted in a disagreement of the jury. At the second trial defendant was convicted of manslaughter in the second degree and appealed to this court, where the judgment of conviction was reversed for errors committed in the impaneling of the jury. The case will be found reported in 64 Kan. 669, 68 P. 48. She has been tried again, convicted of murder in the second degree, and appeals to this court.
The theory of the state in regard to the tragedy is this: Defendant had been greatly attached to Olin Castle prior to his marriage; had corresponded and kept company with him, and evidently anticipated her marriage to him. Upon his marriage to Miss Wiley defendant became intensely jealous of her successful rival; went to the bride's home, carrying with her a letter which it was claimed related to Olin Castle; over this letter in some way a controversy arose; defendant handed the letter to Mrs. Castle to read, and while she was reading it defendant attacked her with the razor which she carried with her for that purpose.
The defense admits the killing, but justifies upon the ground of self-defense. The theory of the defense is that Mrs. Castle was jealous of her husband's affection for defendant; that it was her belief that defendant was attempting to entice her husband from her; that she called Miss Morrison into her house as she was passing, accused her of secret relations with her husband, and attacked her with the razor used; that in the struggle defendant wrested it from deceased and used it in her defense. As evidence of this theory, it was shown that defendant received upon her throat cuts from the razor. The state, however, contends that such wounds were slight and self-inflicted.
The record is voluminous in the extreme, the assignments of error very numerous, the briefs of counsel lengthy. A large amount of labor has been performed in the examination of, and consultation over, the case. In the short limits of a legal opinion it will be impossible to give in detail separate consideration to each independent assignment of error, nor indeed do we deem this necessary in expressing the conclusion we have reached in regard to the case. The former decision in this court is controlling and conclusive upon us now as to some of the important objections here urged.
The first ground of error urged is the order of the trial court denying the motion made by defendant for a change of venue. This application was based upon the bias and prejudice of the trial judge. In its support there were filed the affidavits of James T. Butler and Henry Swan, alleging, in substance, that in the month of December, 1900, during the progress of the first trial of the case and before the commencement of the term of office (but after his election) of the present trial judge, the Honorable G. P. Aikman, in response to an inquiry about the case, he trial judge. said: "I could have been on the defense in that case, but did not feel like defending a person that was as guilty as I believe Jessie Morrison is"; and further said: "The Morrison case was one of the issues on which I was elected." There was also filed the affidavit of E. G. Grinstead, made on the 27th day of May, 1901, alleging, in substance, that in the month of July, 1900, Judge Aikman had stated to him "that Jessie Morrison was a murderess and ought to be hung; . . . that when he became convinced of the guilt of a person as he was of the guilt of said Jessie Morrison, he had no hesitation in saying so." The affidavit alleged this statement to have been made in the law office of Judge Aikman, in the city of El Dorado. There was also filed in support of the application the affidavit of defendant as to certain matters occurring at the former trial of the case before Judge Aikman. Our attention is also called to various matters appearing in the record of the present trial which, it is claimed, tend to show bias and prejudice on the part of the trial judge toward defendant, preventing a fair trial.
In opposition to the motion there was filed the affidavit of W. E. McGinnis, who alleged that he had a desk in the office of Judge Aikman, and was present at the time Grinstead called and introduced himself to the judge; that he heard all the conversation between them; that no such statement as related by Grinstead was made by Judge Aikman; on the contrary, that the Morrison case was not mentioned at all between the parties. The trial judge also filed a statement in writing in which he positively disclaimed making any such statements as are attributed to him by Grinstead, Butler and Swan in their affidavits. He also as positively disclaimed any bias or prejudice whatever against defendant, or that anything which he might have said or done on the previous trial was in any manner or way influenced by his feelings toward defendant, but, on the contrary, asserted in terms most positive his entire ability fairly and impartially to try the case. He further stated that he at no time was consulted by any one as to employment on behalf of the defendant.
In brief, this is the record upon this application. Had the affidavit of Grinstead stood unchallenged in the record, the allegations therein contained would go far to sustain the charge of prejudice made against the trial judge, but this affidavit is flatly contradicted both by the affidavit of McGinnis and the statement of the trial judge. Again, as appears from the record, this affidavit was taken by the attorneys for the defense prior to the first trial of the cause presided over by Judge Aikman, but was not filed or used until the present application was made.
As to the affidavits of Butler and Swan, it may be said that the belief or disbelief of a trial judge...
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